The Danish Chairmanship of the Committee of Ministers of the Council of Europe has issued a draft declaration ahead of the High Level Conference of foreign ministers of the 47 states in Copenhagen on 12-13 April 2018.

Here, we argue that the Draft Copenhagen Declaration poses a grave risk to the independence, integrity and authority of the European Court of Human Rights – and, in turn, to the protection of human rights in Europe – and should be substantially rewritten. Our concerns echo those raised in a detailed joint response to the draft declaration issued by eight non-government organisations that have monitored and participated in the process of ameliorating the Convention system, including at the high-level conference in Kokkedal in November 2017, after which the NGOs expressed disquiet over the proposed approach of the Danish Chairmanship.

That disquiet is borne out by both the tone and content of the draft declaration. While it professes to respect the Court, its leitmotif is a misconstrued understanding of the principle of subsidiarity, which underpins proposals that would seriously infringe on the role and jurisdiction of the Court and potentially expose it to permanent political pressure from states. Moreover, the draft declaration contains errors, contradictions and indeterminate proposals that would, if they are not removed, become dangerous weapons in the hands of those who bear ill-will to the Convention system, undermining it through weak implementation and/or politicised attacks (see here and here).

In so doing, the draft declaration irresponsibly squanders the opportunity to build upon the Brussels Declaration of March 2015 by reinforcing the imperative on states to strengthen national implementation of the European Convention on Human Rights and judgments of the Court.

Below, we contextualise the Copenhagen process before explaining our principal concerns about the tenor of this dangerous draft in terms of how it misconstrues subsidiarity and the margin of appreciation, undermines the universality of human rights, and creates channels for states to apply political pressure on the Court. Further, we highlight an unexplained and extremely worrying proposal to remove human rights litigation arising from armed conflict from the Court’s remit.

How did we get here?

Copenhagen will be fifth in a series of inter-governmental conferences reviewing the Court system, starting with Interlaken in 2010, followed by Izmir in 2011, Brighton in 2012 and Brussels in 2015. While Interlaken and Izmir were principally concerned with the backlog of applications to the Court, which peaked at 160,000 in September 2011, subsequent conferences rehashed “subsidiarity”, a principle confirmed by the Court long beforehand.

The Brighton conference took place in an inflamed political atmosphere, in the midst of the Abu Qatada saga and shortly after David Cameron’s speech in Strasbourg, suggesting a need to “re-balance” states’ relationship with the Court. A leaked draft of the Brighton Declaration contained several contentious proposals which, thankfully, were strongly diluted, with the result being an express reference to subsidiarity and the margin of appreciation to be inserted in the Preamble of the Convention via Protocol No. 15 (not yet in force).

The Brussels conference decisively, and commendably, shifted the focus towards practical steps to strengthen national implementation. It is regrettable that the Danish draft text channels the spirit of Brighton rather than Brussels. This may not come as a surprise, as Denmark has been described as waging a “crusade” against the Strasbourg Court, fuelled by anti-immigration sentiment stoked by the Danish People’s Party and focused in particular on the Supreme Court’s invocation of the right to family life to prevent the deportation of a convicted Croatian national.

Subsidiarity and margin of appreciation misconstrued

Although the draft declaration starts promisingly, underlining states’ “deep and abiding commitment” to the Convention and “strong attachment” to the right of individual application as a “cornerstone” of the Convention system, the rest of the draft is punctuated by pretexts for states to apply political pressure on the Court.

At the root of these regressive proposals is a mischaracterisation of subsidiarity and the doctrine of the margin of appreciation, two well-established principles of interpretation in the Court’s case law.

Subsidiarity is the principle that states (governments, parliaments and courts) have the primary responsibility to secure to everyone within their jurisdiction the Convention rights and freedoms, and to provide an effective remedy when these are violated, always subject to the Court’s supervision. What subsidiarity is not is a basis either for asserting the primacy of national law over Convention law, or for demarcating national spheres of exclusive competence, free from Strasbourg’s supervision. Yet the draft declaration embraces exactly this misconception.

For example, at paragraph 4, it notes that:

States Parties have underlined the need for a more effective, focused and balanced Convention system, where the Court can focus its efforts on identifying serious or widespread violations, systemic and structural problems, and important questions of interpretation and application of the Convention (emphasis added).

As the NGO response states (p. 3), this suggestion misconstrues subsidiarity “as allowing or even requiring the Court to limit or delegate aspects of its material jurisdiction to states”. Indeed, Council of Europe governments considered – and rejected – similar proposals in the report (paragraphs 90-94) on the longer-term future of the Court issued by the Committee of Ministers’ Steering Committee for Human Rights in December 2015.

Confusingly, at paragraph 13, the draft declaration suggests that the larger-scale the human rights violation in terms of the number of people affected, the more “unrealistic” it becomes for individual solutions to be found “at international level” as opposed to national level. This not only contradicts paragraph 4, cited above, but also carries the highly questionable implication that national authorities which have presided over systemic or widespread abuses are presumed to be trusted to resolve them without individual victims having recourse to a supranational judicial mechanism – in other words that the worst offending states should expect less rather than more scrutiny from Strasbourg.

Another attempt to handcuff the Strasbourg judges (at paragraph 26) is an extraordinary proposal for the Court, when examining cases related to asylum or immigration, to take full account of the effectiveness of domestic procedures and, where these procedures are assessed as operating fairly and with respect for human rights, to “avoid intervening except in the most exceptional circumstances”. The language of “non-intervention” is wholly inappropriate and infringes the Court’s authority to interpret Convention rights independently. Moreover, no justification is offered as to why asylum and immigration cases are singled out as requiring a lower standard of review by the Court.

Other mischaracterisations of the principle of subsidiarity appear in paragraphs 22-24, where the margin of appreciation is also deployed in questionable terms. The margin of appreciation is the doctrine, underpinned by the principle of subsidiarity, according to which states enjoy a degree of latitude in deciding from a range of possible ways of giving effect to the Convention rights and freedoms, subject to the ultimate supervisory jurisdiction of the Court. Regrettably, the draft declaration omits to clarify that states do not always have a margin of appreciation and that the scope of the margin of appreciation, if any, is determined by the Court and not by states. As the NGO response rightly points out (p. 6),

it is not for a political Declaration to seek to determine what and how judicial tools of interpretation, such as the margin of appreciation, apply. This is the sole task of the Court, and it must remain so, including with a view to respecting the Court’s integrity, authority and independence.

The draft declaration goes on (at paragraphs 27-28) to “strongly encourage” the Court to continue “robustly” to apply the principles of subsidiarity and the margin of appreciation, which it says provide “important incentives for national authorities properly to fulfil their Convention role”. This appears to refer to what Judge Robert Spano has called a “parliamentary-oriented” conception of subsidiarity whereby, in cases where an impugned law or policy is the result of reasoned, participatory deliberations within a parliament working conscientiously to ensure human rights compatibility, it is more likely to be defensible in a democratic society and hence the Court is less likely to find a violation.

Crucially, however, the draft declaration overlooks one side of the equation, seeking weaker supervision from Strasbourg while neglecting to exhort states to strengthen the parliamentary human rights mechanisms that would allow them to “earn” deference from the Court (aside from a passing reference at paragraph 18). This is a glaring omission from the draft declaration, and stands in sorry contrast to the Brussels Declaration, which contains numerous references to the importance of parliaments in implementing Convention rights and judgments of the Court. This matters because, as we have argued elsewhere, the perceived “democratic deficit” afflicting supranational human rights regimes stems less from a surfeit of judicial intervention than from the inadequacy of political mechanisms to “domesticate” human rights at national level.

Universality

A further concern about the draft declaration is the challenge it poses to the universality of human rights. The assertions (in paragraphs 10 and 14) that rights should be “determined” at national level as a “natural step in the evolution of the Convention system” and protected “predominantly” at national level “in accordance with their constitutional traditions and in light of national circumstances”, reinforces – as the NGO response observes (p. 5) – “the risks of fragmentation of the European human rights protection framework”. The final declaration should, the NGOs propose, “use inclusive language to recognize the importance of adequate implementation of all human rights in all situations in all State Parties” (emphasis in original).

“Dialogue and participation” – or institutionalising political pressure?

Another predominant theme of the Danish text is that of insisting on a more direct dialogue between governments and the Court, beyond the existing frameworks of the Committee of Ministers’ processes, litigation and third party interventions before the Court. This strange proposal suggests, in effect, states’ interference in “applying and developing the Convention” (paragraph 31) and “the general development of case law in important areas” (paragraph 33). Why the necessity to seek “appropriate access” for states to “participate in relevant proceedings before the Court” and the creation of “further possibilities to state their views and positions, and draw attention to the possible consequences for their legal systems” (paragraph 34) when the Court does so already in appropriate cases? What is the point of states, in addition, being encouraged to “discuss the general development of areas of the Court’s case law of particular interest to them and, if appropriate, adopt texts expressing their general views” (paragraph 41)?

Such proposals for dialogue between the political and judicial levels could “inappropriately lead to political pressure on the Court, compromising its independence and authority” (see NGO response, p. 7).

A related concern is the apparent suggestion in the draft declaration that the development of rights and obligations under the Convention should, as the NGO response puts it (p. 2) be “conditioned by majority views”. For example, paragraph 32 notes the “significant impact” of the Court’s case law on “States Parties and their citizens” and calls for “ongoing dialogue in which States Parties and their populations are appropriately involved”. The reference to “citizens” is especially problematic here, given that states are obliged, under Article 1 of the Convention, to secure Convention rights to “everyone within their jurisdiction” (emphasis added) and not only citizens. While democratic deliberation on human rights is to be welcomed, such proposals come dangerously close to suggesting that the Court’s interpretation of Convention rights and obligations should be made dependent on majoritarian support – a position which runs counter to the role of the Convention system in protecting the rights of relatively powerless minorities who are especially vulnerable to discrimination.

Conflict cases

Also of considerable concern is the proposal (paragraph 54.b) to establish “separate mechanisms” to deal with both inter-state and individual cases arising from international conflicts, in the interests of achieving a “balanced caseload”. This would mean that the Court would no longer have remit, as it does now, over human rights litigation arising from armed conflict in regions of Europe such as eastern Ukraine, Crimea, South Ossetia, Abkhazia, Nagorno-Karabakh and northern Cyprus. It would also rule out cases from conflicts such as Iraq, testing the legality of states’ powers of detention and the use of lethal force (see, for example, Al-Skeini v UK, Jaloud v Netherlands, Hassan v UK). There is no explanation as to why this category of cases has been selected for exclusion, over and above any other category of case which may have its complexities and result in substantial litigation. Nor has there been any prior discussion, as far as we are aware, as to the requisite elements of an alternative mechanism, or whether it is politically, practically and financially feasible to establish a viable alternative (providing a level of procedural and substantive access to justice which is at least equivalent to that currently offered by the Court).

What is more, this proposal fundamentally contradicts the express Convention stipulation that its provisions continue to apply in situations of “war or other public emergency” (see Article 15).We recall that in 2015 the Steering Committee for Human Rights ventured as regards large-scale violations that “[t]he Court has a pivotal role in this domain and is equipped to examine large-scale abuses of human rights…” (paragraph 88). Myriad questions would be raised, such as the logic of excluding litigation from eastern Ukraine (if an international armed conflict), but not Chechnya (a non-international armed conflict) – although if Russia’s pleas of its lack of involvement in Ukraine are to be believed, would cases from there also be beyond the Court’s jurisdiction?

Time to heed the warnings

The declaration that will emerge from the high-level conference in April will set the tone and priorities for the Council of Europe for several years to come. While the Brussels Declaration has yielded constructive developments in getting states to recognise and act upon their shared responsibility to secure human rights, the Draft Copenhagen Declaration, as it stands, gives a green light to recalcitrant states to apply pressure on the Court and perpetuates mistaken understandings of the key principles that underpin the Convention system.

Given serious human rights regression across Europe – especially prevalent in Poland and Hungary, Turkey, Azerbaijan and Russia, as well as Ukraine and Crimea – a secure, independent Court is needed for the continent more than ever. We trust that the warnings already issued by civil society will be heeded and that the drafters head straight back to the drawing board.

On 8 February 2017, the UK Supreme Court held unanimously that a Wikileaks document is admissible in a domestic court. The Wikileaks document in issue purported to be a copy of a diplomatic cable from the US Embassy in London summarising a meeting between US and British officials. In reaching their decision, the Court had to interpret the Vienna Convention on Diplomatic Relations 1969, which provides that a document and archive of a diplomatic mission is “inviolable”. The importance of this case, the lack of any strong precedent anywhere in the world, and its broad ramifications, led the Court, unusually, to sit as a 7 member panel.

The case, R (Bancoult) v. the Secretary of State for Foreign and Commonwealth Affairs (Bancoult 3), was part of a series of cases brought by representatives of Chagossians, who were removed by the UK government from the Chagos Islands (a British colony) in the 1970s. A factor in their removal was the leasing of the main island (Diego Garcia) to the US government for a military base. Several actions by successive British governments have prevented the Chagossians from returning to the Chagos Islands and these actions have, to date, eventually been held to be lawful by the highest UK courts. The publication of the Wikileaks document, which was then published in The Guardian and The Telegraph, arguably brought into question the legality of one of these actions: the decision in 2010 by the then Secretary of State for Foreign and Commonwealth Affairs, David Miliband, to impose a Marine Protected Area (MPA) around the Chagos Islands.

The claim against the government by the Appellant was that this decision to impose an MPA was undertaken not for environmental purposes, but to prevent the return of the Chagossians, which was an improper purpose. Ultimately, the Supreme Court held (with Lady Hale and Lord Kerr strongly dissenting) that no improper purpose could be found, not least as it was the motivation of the Secretary of State that was relevant and not that of the civil servants who were managing the process. The Court also noted that the fishing rights of the Chagossians had not been properly considered by the Secretary of State (and in so doing relied on the finding by an international arbitral tribunal that these fishing rights did exist) but that this did not make any consultation on the MPA invalid. Thus, the appeal by the Chagossians failed.

This post focusses on the consideration by the Court as to whether the Wikileaks document could be allowed into evidence at all. The importance of the Wikileaks document to the claim was that the document, being a summary by the US Embassy in a diplomatic cable, of a meeting between US and UK officials held in May 2009, included the words:

[Colin] Roberts [of the FCO] stated that, according to the [UK government] current thinking on a [marine] reserve there would be no ‘human footprints’ or ‘Man Fridays’ on the BIOT’s [British Indian Ocean Territories] uninhabited islands. He asserted that establishing a marine park would, in effect, put paid to resettlement claims of the [Chagos] archipelago’s former residents […]. Establishing a marine reserve might, indeed, as the FCO’s Roberts stated, be the most effective long-term way to prevent any of the Chagos Islanders’ former inhabitants or their descendants from resettling in the BIOT.

This statement (beyond its reporting of the use of appalling pejorative terminology), and other indications in the Wikileaks document, seemed to indicate that the reason for the MPA was to prevent the Chagossians returning and not to protect the marine environment around the Chagos Islands. During cross-examination of Mr Roberts at the initial stage of the case, the case was halted as the FCO cleverly argued that the Wikileaks document, being apparently a copy of a diplomatic cable, was inadmissible in a UK court as it was contrary to the Vienna Convention on Diplomatic Relations 1961 (VCDR). The two key provisions of the VCDR are:

Article 24: The archives and documents of the mission shall be inviolable at any time and wherever they may be.

Article 27 (2): The official correspondence of the mission shall be inviolable.

There was considerable argument before the Supreme Court as to what was meant by ‘inviolable’. In the absence of any case law directly on this point, the Supreme Court referred to a range of commentators, such as Eileen Denza, Rosalyn Higgins and FA Mann, who sought to interpret the VCDR. Mann’s view, which was accepted by the Court of Appeal, was that ‘inviolability’ protected against interference (by the claimant or the receiving state) with the document and was not a general rule against inadmissibility in a domestic court. Denza’s view was that inviolability meant inadmissibility in any domestic court no matter how they came into possession of a party to the case. This latter view, in the Supreme Court’s opinion, was correct as it was supported by the House of Lords in Shearson Lehman Bros v Maclaine Watson [1988] 1 WLR 16. Accordingly, the Supreme Court (Lords Mance, Neuberger, Clarke and Reed in the main decision) concluded that:

In principle, therefore, inviolability of documents which are part of the mission archive under articles 24 and 27(2) extends to make it impermissible to use such documents or copies in a domestic court of the host country, at any event absent extraordinary circumstances such as those of the Cellamare conspiracy or Rex v Rose and absent express waiver of the inviolability by the mission state [para 20].

Lord Sumption, in his separate opinion (with whom Lords Neuberger, Clarke and Reed agreed), noted that Article 24 is not only violated where the receiving state fails to protect the archives and documents against third party action but also if a domestic court, as an organ of the receiving state, receives and uses this material [para 71]. This includes, in his view, where the document comes into the hands of a third party. He makes clear that this is not due to the words ‘wherever they may be’ in Article 24 but because it is contrary to the confidential status of the mission’s archives and documents of which inviolability is founded.

Nevertheless, the Court noted that this principle of inviolability is subject to two qualifications:

First, the document must constitute or remain part of the mission archive, and, second, its contents must not have become so widely disseminated in the public domain as to destroy any confidentiality or inviolability that could sensibly attach to it. These two qualifications may sometimes, but certainly not always, coincide. [para 20].

In this case, there was no suggestion that the Wikileaks document came directly from the US Embassy in London, as it probably came from the US State department somewhere else (most likely from Iraq). Accordingly, the Court held:

it is not therefore established, even as a matter of probability that the cable remained part of the archive of the London mission, when it was extracted [by Wikileaks]. On that simple basis, the Wikileaks cable was available for use and admissible as evidence of its contents in the present proceedings [para 20].

Lord Sumption explored this issue further by clarifying that, while the diplomatic mission and the sending State are not separate legal entities, the protection of Article 24 is limited to the archives and documents of the mission. He notes that it is not the location of the archives (as they could be on a server anywhere) which is relevant but whether they are under the control of the mission’s personnel as opposed to the control of other agents of the receiving state [para 68]. Lady Hale agreed with this on the understanding that control can include where there are specific restrictions (other than generally being ‘confidential’) placed on the documents when they leave the mission [para 127].

The Court also held that any inviolability was lost due to the Wikileaks document coming into the public domain. This was the case even if it had been unlawfully extracted from the mission archive [para 21]. As Lord Sumption explained, once the documents have been published to the world, any confidentiality of them has been lost and there is ‘nothing left to be preserved of the interest protected by Article 24’ [para 75]. He indicates that this may be the case even where the documents were put into the public domain by the person relying on them. He also notes that any finding by the Court as to the authenticity of the Wikileaks document can be done without the consent of the sending state, as the document is already in the public domain and so subject to public scrutiny [para 77]. Accordingly, it would not be a violation of the VCDR for the Appellant to use the Wikileaks document and it not could ‘be a violation for the English courts to take cognizance of a document which has escaped from the control of the US embassy and whose confidential status long ago came to an end’ [para 76] and so the courts can consider its authenticity and evidentiary value.

This is a clear decision by a strong court. Yet, disappointingly, the Supreme Court did not itself undertake a close interpretation of the VCDR using the public international rules for interpretation of a treaty. While Lord Mance noted that inviolability ‘may embrace different shades of meaning according to the context in which it is deployed’ [para 13], and Lord Sumption noted that inviolability ‘is a protean word, whose meaning is necessarily sensitive to its context and purpose’ [para 69], they did not reach these conclusions through use of these public international law rules, though Lord Sumption did consider some of the relevant international instruments and he did try to discern the object and purpose of the VCDR, which he concluded was to ‘to ensure the efficient performance of the functions of diplomatic missions as representing States’ (relying on the fourth preamble of the VCDR). This general approach by the Supreme Court is in contrast with that of other UK courts when interpreting a treaty that is incorporated into domestic law, as they normally use the rules of interpretation of a treaty by following Articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969 (see, for example, R (Hoxha) v Special Adjudicator [2005] UKHL 19 and Ben Nevis (Holdings) Ltd v Commissioners for HMRC [2013] EWCA Civ 578). While it might appear that the end result may not be different, adopting an approach that follows expressly the international rules of treaty interpretation can be of great value in terms of consistency of interpretation of a treaty across domestic and international courts and tribunals.

By focussing on the idea of ‘control’ by the diplomatic mission, the Court did clarify that the term ‘wherever they may be’ in Article 24 could not mean simply wherever in the world the documents are located (as was Denza’s view). As Lord Sumption noted, electronic files can be located away from the mission premises and yet may be part of the mission’s archive or not. What was determinative was whether ‘access to them is under the control of the mission’s personnel, whether directly or by virtue of the terms on which the mission transmitted the document to another [sending state’s] governmental entity’, or obtained it or a copy of it from the sending state [para 68]. However, the difficulty of moving the issue to one of control by the mission of the document rather than about the limits of responsibility of the receiving state (such as to prevent interference or otherwise to protect the mission – see Re Minister of Foreign Affairs and Trade v Magno [1992] FCA 566) is that it may be very difficult for a claimant or the court to determine the level of control by a mission of a document. It is also not clear what restrictions are needed to be placed on a document send by a mission so as to keep it within the inviolability of the mission’s archives, as simply marking it ‘confidential’ is insufficient. This is particularly the case where, as here, the sending state (the US) did not appear before the courts or where a sending state may be tempted to indicate a greater level of control by the mission of the document in order to gain inviolability of that document. To prevent this expansion, the courts may need to adopt an independent approach to the determination of the control a document, much as they do with the commercial exception to the State Immunity Act 1978.

It is welcome that the Court acknowledged the absurdity of trying to maintain confidentiality of a document in the public domain, even where a document is a diplomatic document and has been unlawfully obtained. This is a realistic and wise approach.

This is a powerful decision by the Supreme Court that a Wikileaks document can be admissible into a UK court and its evidentiary value and authenticity can be weighed by the courts. While some domestic and international courts and tribunals have taken into consideration Wikileaks documents (see, for example, Republic of Djibouti v Boreh [2016] EWHC 405 (Comm), Persia International Bank v Council [2013] EUECJ T-493/10 (6 September 2013) and ConocoPhillips v Venezuela ICSID Case No Arb/07/30), in each instance, they had not considered the issues of inviolability under the VCDR. In this case, the UK Supreme Court has reviewed the VCDR and decided that a Wikileaks document is admissible in evidence before a domestic court in circumstances that are likely to be applicable to most Wikileaks documents involving diplomatic cables in a non-US court.

Robert McCorquodale appeared for the Appellant in the Bancoult 3 case, and undertook the advocacy about the Wikileaks document issue before the Court of Appeal and the Supreme Court.

Turkish Armed Forces (TAF) carried out ‘Operation Euphrates Shield’ for 216 days from August 2016 to March 2017 in the triangle between Azaz, Jarablus and al-Bab in northern Syria. Thanks to this military operation, Turkey cleared Daesh from the region and halted the risk of the PYD/YPG exercising control of the Syrian side of the shared 911km border by wedging itself between two PYD/YPG controlled areas. In addition, some displaced Syrians voluntarily returned to this region from Turkey, which currently hosts around 3.5 million Syrian refugees — more than any other country.

In line with this previous operation, the TAF launched ‘Operation Olive Branch’ on 20 January 2018 in Afrin, which has been controlled by the YPG. In its letter to the UN Security Council (UN Doc. S/2018/53), Turkey justified this operation on the basis of self-defence and various Security Council resolutions calling on Member States to fight terrorism.

Since the indicated UN Security Council resolutions do not explicitly authorize the cross-border use of force, Turkey’s reliance on it as a justification of its extraterritorial military operation is unacceptable in international law. As far as I see in legal discussions, there is no dispute over this. However, the question of whether Operation Olive Branch can be justified on the basis of self-defence has brought with it some controversy.

Armed attack

According to both Article 51 of the UN Charter and related customary international law, occurrence of an ‘armed attack’ is required for the activation of the inherent right of self-defence. The ICJ identified ‘scale and effects’ as the criteria that ‘distinguish the most grave forms of the use force (those constituting an armed attack) from other less grave forms,’ but has not specified indicators of these criteria (Nicaragua judgment,1986, para. 191). It should be noted that the scale and effects criteria have nothing to do with numbers. Rather, it is a legal assessment depending on facts and circumstances at hand.

‘[t]he recent increase in rocket attacks and harassment fire directed at Hatay and Kilis provinces of Turkey from the Afrin region of Syria, which is under the control of the PKK/KCK/PYD/YPG terrorist organization, has resulted in the deaths of many civilians and soldiers and has left many more wounded.’

These trans-border attacks originating from Syria’s Afrin may individually fall below the threshold of an armed attack, but this series of attacks needs to be regarded as cumulative in character. If, as Turkey has asserted, the series of these incidents resulted in deaths and injuries, then it can be treated as a composite armed attack within the meaning of Article 51 of the UN Charter, which entitles the victim State to self-defence. At this point, one should also remember the fact that Turkey has long been targeted by terrorist organizations from the territories of its unstable neighbours, Iraq and Syria. NATO Secretary-General Jens Stoltenberg affirmed this view by stating that:

‘Turkey is the NATO [a]lly which has suffered most from terrorist attacks over many years and Turkey, as all of the countries, have the right to self-defence, but it is important that this is done in a proportionate and measured way.’

Anticipatory self-defence

Some scholars, such as Peters and Talmon, are sceptical that the terrorist attacks occurred prior to the launch of Operation Olive Branch. Their suspicion is understandable, as it is the burden of the victim State to provide substantiating evidence of the factual occurrence of an armed attack (Armed Activities judgment, 2005, para. 146). Turkey should therefore have substantiated the YPG’s attacks and their consequences in its letter to the UN Security Council. Turkey still has the opportunity and burden to convince the international community in this regard.

Supposing that Turkey could not substantiate its allegation, I think the legality of its extraterritorial military operation is worth discussing on the basis of anticipatory self-defence. According to this controversial doctrine, a State is permitted to defend itself not only when an armed attack has already materialized, but also when it is ‘imminent’, as has been accepted by the majority of States and scholars since the Caroline incident. However, the meaning of imminence as a matter of law is the subject of some controversy (for this discussion, see Green, Hakimi and Milanovic). Reisman and Armstrong survey the contemporary State practice and conclude from statements of several States that imminence is interpreted more flexibly in State responses to terrorist organizations. In line with this conclusion, Hakimi indicates that anticipatory self-defence ‘might already be shifting or might soon shift from the restrictive position toward the more permissive one.’

In its letter to the UN Security Council, Turkey indicated that Operation Olive Branch was initiated to respond to the recent increase in the PKK/YPG’s long-standing attacks and to counter terrorist threats from Syria. Turkey’s military actions and legal position in this respect seem to be in line with the practice and legal positions of some States such as Australia, Canada, the UK and the US, which justified their use of force in Syria on the basis of an individual or collective right of self-defence to respond to terrorist threats or imminent armed attacks. Peters rightly expresses her concern that opening the door of self-defence to ‘the threat of terrorism’ may trigger abusive invocations of self-defence. Likewise, it should be kept in mind that the requirement of imminence is more likely to be satisfied with evidence of a perpetrator’s concrete plan to launch an armed attack rather than just the mere capability to launch one in future. However, what Turkey argues here is not only the general threat of terrorism or mere capacity of a non-State actor: Turkey points directly to the propensity of the PKK and its affiliates to launch attacks when conditions are suitable. In other words, Turkey has considered the recent increase in the PKK’s long-standing attacks and concluded that it represents a permanent and active threat of further attacks, both in terms of capacity and intent.

The PKK has caused the loss of more than 40,000 people, including civilians, in its terrorist attacks in Turkey since 1984. States including but not limited to members of the EU, Australia, Canada, the UK, and the US, as well as international organizations such as NATO and the EU, see the PKK as a terrorist organization. A report published by The Henry Jackson Society, a London-based think tank, in 2017 indicates that the PKK and the PYD/YPG ‘are organically integrated components of the same organisation — sharing membership, ideology, and a command structure.’ Iraqi Kurdish leader Masoud Barzani in 2016 indicated that the PYD/YPG and the PKK are ‘exactly one and the same thing.’ Even the former U.S. Secretary of Defence Ashton Carter and the U.S. Central Intelligence Agency have confirmed that they see the PYD/YPG as a Syrian wing of the PKK terrorist group. The aim here is not to put all Kurds in the PKK/PYD/YPG terror basket. On the contrary, the PYD/YPG should not be considered a legitimate representative of the Kurdish population in that region due to its affiliation with the PKK, and should not be a partner in the fight against Daesh. The reason why this terrorist organization operates under different brands is explained by the US Army General Raymond Thomas, the head of Special Operations Command, as following:

‘They formally called themselves the YPG, who the Turks would say equated to the PKK. So we literally played back to them that you’ve got to change your brand. What do you want to call yourself besides the YPG? With about a day’s notice they declared that they were the Syrian Democratic Forces.’

Whatever they name themselves, this kinship seems sufficient to categorize the PYD/YPG as a Syrian wing of the PKK. The YPG has taken advantage of the conditions of the instability in Syria and expanded its control over the areas in northern Syria alongside the Turkish border thanks to extraordinary US military support, repeatedly condemned by Turkey. Under these circumstances, had it not launched this military operation, Turkey may have lost the opportunity to defend its border security effectively. In other words, failure to stop the advance of the YPG along its border today would reasonably be expected to result in the YPG’s larger-scale attacks against Turkey in near future.

‘[…] acting in self‑defence does not require a State passively to await attack. That view is shared by the United Kingdom, the United States, and other like‑minded countries.’

That view is also shared by Turkey as it launched Operation Olive Branch to stop the advance of the YPG and its terror corridor in northern Syria before it loses the opportunity to defend itself effectively.

Non-State actors

Although there is significant legal uncertainty over the question of whether an armed attack by a non-State actor not attributable to a State suffices to trigger self-defence (for this discussion, see Milanovic’s article), State practice in the wake of 9/11 has started to evolve in the direction of affording States the right of self-defence in response to attacks conducted by non-State actors. This evolution is, in fact, not contrary to the UN Charter, as nothing in the language of Article 51 limits ‘armed attack’ to attacks attributable to a State. Accordingly, as has been embraced by some States, such as Australia, Canada, Germany, Turkey, the UK and the US, when the host State is ‘unable or unwilling’ to prevent its territory being used as a base for launching attacks against the victim State’s territory, the victim State is permitted to exercise its right of self-defence providing that its requirements are met.

The ICJ, however, has not embraced this approach yet (Wall advisory opinion, 2004, para. 139; Armed Activities judgment, 2005, para. 147). In line with the jurisprudence of the ICJ, many scholars, such as Heller and Green, argue that there is no consistent State practice supporting the ‘unable or unwilling’ test in relation to self-defence actions adopted against non-State actors.

The willingness of subjects of international law to apply the right of self-defence against non-State actors can be observed by the recognition of the US right to respond in self-defence against the 9/11 attacks (see Paust’s article). I think, in the face of such recognition by the Security Council, NATO as well as majority of States, international courts and scholars should have been prepared to review their traditional approach. Otherwise, giving this right to one State but not to others would be a double standard, violating the understanding of the equality of States enshrined in Article 2(1) of the UN Charter and undermining the international legal order.

Proportionality and necessity

In accordance with customary international law, the ICJ confirmed that two more criteria, proportionality and necessity, need to be met for a lawful exercise of self-defence (Nicaragua judgment,1986, paras. 176, 194; Oil Platforms judgment, 2003, paras. 43, 73-74, 76).

The scale, scope, duration and intensity would be determinant factors in an assessment of the proportionality of any self-defence action. Turkey should, therefore, exercise its military operation in accordance with the statements of Turkish officials emphasizing its temporary nature and limited purpose of clearing its border from terrorist organizations.

As to necessity, the US has been warned by Turkey several times in recent years for its increasing military support to the YPG by providing heavy weapons, training its fighters and even planning to create a so-called ‘Border Security Force’. This support has increased the YPG’s military capacity in Afrin, triggering Operation Olive Branch. Given this growing capacity, no less intrusive means remain available to Turkey to defend its national security interests aside from conducting an extraterritorial military operation against the YPG.

If “all options are on the table” in the international arena, it is a reliable indicator that the stakes are high. We still recall when President Trump put all options on the table in August last year responding to North Korean missile tests. Just a few days before, Germany, usually not known for Trumpish rhetoric, also placed “all options on the table” in a dispute with Vietnam. This was not because Germany was concerned about a nuclear escalation. Germany was responding to a kidnapping of a Vietnamese citizen and asylum seeker, which Germany’s foreign minister accurately described as something “we believe one sees only in sinister thrillers about the cold war.”

Trinh Xuan Thanh, a former high-profile constructive executive, for whom Vietnam issued an international arrest warrant for corruption, sought refuge in Germany. Thanh however never showed up for the hearing scheduled in his asylum case. Instead, a few days later, he appeared haggard-looking on Vietnamese television. Vietnamstated Thanh had voluntarily turned himself in. Germany presents a different version of Thanh’s return, accusing Vietnam of abduction. Purportedly, witnesses saw armed men dragging Thanh into a rental car in the middle of Berlin. After a stopover at the Vietnamese embassy, it is believed that he was clandestinely transported by ambulance to Eastern Europe from where he was flown to Vietnam. Germany had no doubts that Vietnamese officials were responsible. On February 5, the second trial against Thanh concluded. While he escaped the impending death penalty, he received two life sentences for embezzlement.

These are only the core facts of this surreal story with manymore thriller-like details, leading Germany to put “all options on the table”. Germany initiated criminal investigations (leading to a first arrest). Germany suspended a public official pending an inquiry into his involvement in the kidnapping. Germany harshly and repeatedly denounced the kidnapping as an “unprecedented and blatant violation of German law and international law”, see here, here, here. Germany found it “just unacceptable that foreign States on German territory under German sovereignty trample German law.” As a consequence, Germany first demanded Thanh’s return to further examine his case. Realizing the futility of this claim, Germany requested an apology and a guarantee of non-repetition. Furthermore, Germany declared Vietnamese diplomats persona non grata. Finally, in reaction to Vietnam’s failure to meet Germany’s demands, Germany eventually suspended her Strategic Partnership with Vietnam.

Violation of international law by Vietnam

Assuming Germany’s allegations prove true, there is little doubt that Germany’s outrage is legally well-founded. An abduction carried out by Vietnamese agents within German territory violates Germany’s sovereignty and territorial integrity deriving from Article 2(1) UN Charter. Also, the embassy’s involvement amounts to a violation of the Vienna Convention on Diplomatic Relations, in particular Article 41, which states that it is the duty of all persons enjoying diplomatic privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State. And finally, it is established that abductions violate the abductee’s right to liberty and security as guaranteed in Article 9(1) ICCPR, also when conducted extraterritorially.

One might ask if Vietnam’s action may be justified. Thinking creatively, two facts may be relevant here: Germany has not followed numerous Vietnamese requests for extradition of Thanh. Second, Vietnam presses apparently legitimate charges of corruption against him, uncontested by Germany. However, none of these arguments is convincing. First, in absence of an extradition treaty between Germany and Vietnam, Germany has no obligation to extradite Thanh. Second, even though it ultimately did not materialize, Thanh faced a real risk of being subjected to the death penalty in Vietnam. Thus, the obligation of non-refoulement even prohibited Germany from extraditing him. Moreover, Germany was not categorically unwilling to extradite Thanh, but rather was conducting high-level negotiations about an extradition consistent with human rights. (This also explains why Germany speaks of “an extreme breach of trust.”) Finally, even if Germany was wrongfully denying extradition and impeding Vietnam’s claim to justice, no circumstances of precluding wrongfulness permitted those means of archaic self-help Vietnam resorted to. Under current international law, justice has to cooperate and wait. Calls to pierce State sovereignty to fight impunity still have their limits at State borders (see for the discussion on State immunity). Even the abduction of Eichmann, one of the main organizers of the Holocaust, prompted Argentine to strongly protest against the violation of its sovereignty and complain to the Security Council. The Security Council agreed and requested Israel to make appropriate reparation. And Israel accepted that it “infringed fundamental rights of the State of Argentine.” International law‘s position has not changed despite recent extraordinary rendition practice in the fight against global terrorism – and hence gave valid reason to Germany to put “all options on the table.”

Germany‘s Reaction

However, it is also beyond doubt that Germany’s “all options” have their limits in international law. This case illustrates however that defining those limits may prove difficult. First, Germany accepts and closely follows the trial against Thanh, and has limited herself to requesting due process guarantees. This appears as an implicit acceptance of the heavily criticised, but accepted doctrine of male captus bene detentus. Apparently, Germany’s “options” do not include contesting Vietnam’s right to conduct the trial. Moreover, the incident allows us to assess the limits of a state’s freedom to choose an adequate form of reparation and to respond to internationally wrongful acts.

Choosing Reparation

Since the famous Chorzow Factory decision of the PCIJ it is generally accepted that every breach of an international obligation entails the obligation to repair the damage caused by said breach. Reparation has to wipe out all consequences of the wrongful act. To that end, the ILC’s Articles on State Responsibility establish a clear hierarchy between the different forms of reparation, giving primacy to restitution over compensation and satisfaction. In principle the injured state can overturn this primacy by choosing another mode of reparation. This right to choose however only applies “in most circumstances”. Or as the ILC goes on to explain in more detail: “there are cases where a State may not, as it were, pocket compensation and walk away from an unresolved situation, for example one involving the life and liberty of individuals […]“. (ILC ARS Commentaries, Art 34, para 4 and Art 43, para 6)

Germany gave up on her initial request to have Thanh returned in favour of demanding an apology and a guarantee of non-repetition. Thus, even though Germany did not take money and run, she chooses satisfaction over restitution, turning her back on Thanh, who at the time Germany made her choice still faced the death penalty. How does such a reaction square with the ILC’s remarks?

It is clear that Germany cannot be obliged to demand Thanh’s freedom by way of restitution. For the injured state, reparation is a right not an obligation. Germany also does not owe release efforts to Thanh. She has no extraterritorial human rights obligations towards him, now in Vietnam. She played no part in his abduction and there are no indications that she violated a positive obligation to protect Thanh. Germany also complied with her procedural obligation to investigate human rights violations on her territory. Moreover, Germany does not have any obligations towards any third party in that matter either.

But still, according to the ILC, Germany is not free to choose the reparation she wants. This of course for an obvious reason: choosing other forms of reparation over restitution would be detrimental to the individual’s position. Taking our case as example, Vietnam has the obligation towards Germany to return Thanh to German territory as restitution. By giving up on this claim, Germany absolves Vietnam from this obligation, leaving Thanh to face the death penalty or life imprisonment. This constellation may be best explained by the notion of abuse of rights: Even if a state does not owe a certain behaviour to anyone, it must make use of its rights in a way that does not infringe the valid interests of others without good reason. Hence, the right to choose a form of reparation is subject to a balance of interests of the parties affected. By indicating that Germany has to accept that a trial is happening, a German spokesperson hinted to the fact that it is hard to obtain restitution from Vietnam. Should that be the only reason for Germany‘s choice of reparation, this will hardly hold up in a balance of interests, considering the fact that an individual’s freedom and life were in danger.

In sum, it is Germany’s sovereign decision whether she seeks reparation at all. It is also her sovereign decision by what means and with how much effort she tries to enforce her right to reparation. However, Germany may not exercise her right to reparation in a way that she enriches herself – even if only immaterially – to the detriment of the valid interests of a third party. Thus, in our case, while Germany in a mitigative manner pushed for due process rights in the trial, Germany could not have simply taken the easy way out by choosing satisfaction and leaving Thanh to his fate.

Of course, these are only first thoughts on a subject which received little attention in academic discourse so far and calls for a thorough review of international practice. Coming back to the Eichmann case, Argentine did not demand Eichmann‘s return either. Yet, it can easily be imagined that due to the advancement of human rights and the individual’s heightened position in international law today a similarly high profile case nowadays would be treated differently. For example, Libya demanded the return of Abu Anas al-Liby whom the United States kidnapped from Libyan territory in a counterterrorism operation.

Suspension of the Strategic partnership – Enforcement of what?

Finally, Germany suspended the strategic partnership with Vietnam, which was founded on the Hanoi-Declaration 2011. Unfortunately, only sparse reliable information is available on what this meant in practice. If it was only the Hanoi-Declaration that was suspended, there is good reason to assume that the suspension would only constitute an unfriendly, though lawful retorsion. Throughout its provisions, the Hanoi-Declaration merely expresses the intent to deepen cooperation between Germany and Vietnam, stopping short of entering into hard legal commitments. The suspension constitutes hence a strong political sign, but no countermeasure.

It is however worth asking which obligation violated by Vietnam Germany thus sought to enforce. Arguably, primarily, the suspension was directed at enforcing the new legal relation arising due to Vietnam breaching its obligation to respect Germany’s sovereignty; an obligation owed to Germany individually, which Germany is entitled to invoke responsibility for according to Article 42 ARS – and if so wished even through countermeasures. The same is true for Vietnam’s violation of the law of diplomatic relations. It is also owed to Germany individually. The nature of the law of diplomatic relations as so-called “self-contained regime” does not stand against this. It only prohibits any means targeting diplomatic institutions and personnel themselves (except by the means foreseen in the VCDR). The “self-contained regime” however must not be confused with a prohibition to take enforcement measures (retorsion or countermeasures) for the law of diplomatic relations by other means.

Finally, Germany‘s reaction could also be read as an attempt to induce Vietnam’s compliance with Thanh’s human rights, in particular Article 9(1) ICCPR, which is continuingly violated throughout Thanh’s captivity. This would mean that Germany attempted to enforce human rights of a Vietnamese citizen against his home State. Controversial questions on Germany’s entitlement to invoke those violations and if so by what means arise. While Germany arguably may invoke Vietnam’s responsibility pursuant to Article 48 I ARS, the permissible means pose more difficulties. Beyond the categories specified in Article 48 II ARS one rapidly comes across rough grounds – the fiercely debated question whether third States may take countermeasures to enforce erga omnes obligations has been deliberately left unanswered by the ILC (see Article 54 ARS). Germany, similarly, leaves those controversial questions open. By taking political means only and by remaining vague on the norms she aims to enforce, Germany (maybe unintentionally, but skilfully) avoids going through the door she opened putting “all options on the table”. Still, the case shows how closely related the enforcement of sovereignty and human rights may be.

Conclusion

In short, a surreal story resembling sinister thrillers about the cold war serves as another example of the complex interplay between sovereignty and human rights and gives reason to dedicate further thought to legal consequences of transboundary abductions. While it is beyond doubt that those abductions constitute serious violations of international law, the international community still struggles with how to adequately respond. In this respect, nothing appears to have changed since the Eichmann case: the Security Council found a violation of international law, but evaded the question of what should be the concrete consequence. The answer to that question is still to be determined.

Achbita, decided in March 2017 is not a run of the mill case. It raised what I think are hugely difficult conceptual legal issues. It also comes at a delicate moment in the social and political life of Europe, where the Court of Justice of the European Union is an important actor in shaping the climate and defining the moral identity in and of Europe. I do not believe the Preliminary Ruling of the ECJ comes even close to what one may expect from the supreme judicial voice of justice of our Union in a case of this nature.

The case concerned, as you will know, a Muslim woman whose employer insisted in the name of a neutrality policy of the Company that she may not wear the hijab (a head scarf) to work, and thus she lost her job. I think it is a fair reading of the ruling sent back to the referring Belgian Court that other than checking that the company, without overly burdening itself, could not find a place for Achbita in a back office which would not bring her into contact with the public, the Court had no major problems with the company’s policy compliance with the specific Directive bringing the case within the jurisdiction of European Law and the overriding human rights controlling norms such as the ECHR and the EU Charter of Fundamental Rights.

I will present the case, for reasons which I will explain below, with a slightly different factual matrix.

Chaya Levi lives in Antwerp. She is part of the large Jewish Hassidic community in that town. She, like other members of that community, follows the strict norms of Orthodox Judaism. Some refer to them as Ultra-Orthodox. She works as a receptionist in a general services company which, inter alia, offers reception services to customers in the private and public sectors. As a receptionist she comes into contact with customers. No fault is found with her job performance. Chaya Levi falls in love and marries Moses Cohen of her community. Under Jewish law she now must wear a scarf covering her hair, not unlike the Islamic headscarf. In Antwerp this is an immediate tell-tale sign that she is an observant Jewess.

She is told by her supervisors that under company policy this headscarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to the company’s policy of neutrality (Weiler, ‘Je Suis Achbita’, 28 European Journal of International Law (2017) 989.)

Chaya Cohen (née Levi) refused to remove the scarf and was dismissed. She lodged an appeal before the competent Belgian courts and eventually comes by way of Preliminary Reference to the ECJ and is considered primarily under Directive 2000/78 (Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303.) The Directive refers in Recital 1 to fundamental rights protected under the ECHR which provides in Article 9 that everyone has the right to freedom of thought, conscience and religion, a right which includes, in particular, freedom, either alone or in conjunction with others, and in public or private, to manifest her religion or belief in worship, teaching, practice and observance.

The Court points out that these same rights are reflected in Article 10(1) of the Charter. The references to the Charter and the ECHR are important since whereas the Directive is concerned specifically with non-discrimination, the Charter and the ECHR more capaciously refer to freedom of religion. Both principles come into play in this decision.

The Framing of the Factual Matrix

As cited, approvingly, by the ECJ, the Belgian Higher Court ‘… noted … that it was common ground that [Chaya Cohen] was dismissed not because of her [Jewish] faith but because she persisted in wishing to manifest that faith, visibly, during working hours, by wearing [a Jewish] headscarf’. (Para. 18. I say ‘approvingly’ because when the ECJ analyses the case its entire focus is on the right under the different legal norms, international and European, to ‘manifest’ one’s religion. See e.g. para. 28. Nowhere does it consider other provisions in the same norms to freedom of practice and observance. (Cf. para. 26 with references therein)).

The first major problem with the approach of the Court is rooted in this very framing of the case.

I invite you to consider two variations of the factual setting as presented above.

Variation 1. Chaya Cohen, in addition to her scarf, also sports a Star of David pendent.

Variation 2. Moses Cohen also works at the company. He, too, sports a Star of David pendent, but in addition wears a yarmulke (skull cap) and has long dangling side locks, which are required under similar strict Jewish law. (You have seen these men around in airports, etc.)

When told of the policy of the company that they may not ‘manifest’ their faith visibly during working hours, both immediately offer to remove the Stars of David. That indeed is an identity marker which manifests their Jewishness. Moses offers to wear a hat and to try and hide his side locks behind his ears. His supervisors are dubious: Who wears a hat indoors if he is not a Jew, they ask? That, too, is a clear tell-tale sign, he is told, and thus contrary to company policy. His side-locks, it turns out, are too long and, alas, are still visible. Reach for the scissors if you wish to keep your job.

Be that as it may, Moses and Chaya try to explain that in wearing the scarf, the yarmulke and the side locks they are not ‘wishing to manifest their faith’. The Star of David can come off at the blink of an eye. But in relation to the scarf and yarmulke they are practising their faith. They have no option by law the observance of which in their eyes overrides, quelle horreur, even European law.

Grant me that there is, phenomenologically-speaking, a difference between the wish to manifest one’s religious identity and the practising and observing of such. Or, put differently, between forbidding someone from manifesting his or her religious identity and actually coercing them to violate religious norms which they consider sacred.

Here are two examples to underline the difference. It is one thing to tell a vegetarian or vegan that they may not show up at work wearing a lapel button proclaiming their belief in animal rights but quite another to coerce them to eat meat. Or telling a gay man or woman that they may not show up with a rainbow tie and telling them they may not actually practise homosexual love.

It follows, in my view, that the ‘common ground’ to which the Belgian Court alluded and which seems to underlie the judgment of the ECJ should not be that:

[Chaya Cohen] was dismissed not because of her [Jewish] faith but because she persisted in wishing to manifest that faith, visibly, during working hours, by wearing [a Jewish] headscarf.

But instead quite differently:

Chaya Cohen was dismissed precisely because of her Jewish faith – a faith which manifests itself in a Nomos which includes (to the bewilderment of some) a duty and commitment to wear a scarf once married.

Or, put differently:

She was dismissed not because she persisted in wishing to manifest her faith but because she persisted in wishing to practise what she, as an adult woman, or her husband (variation 2), as an adult man, held to be their religious legal duty as an expression of loyalty to, and love of, the Almighty and, born into an eternal Covenant to which they choose to remain loyal.

After all, Moses wears his yarmulke even when alone at home. To whom is he manifesting his religion then? ‘To God’ would be the only dignified answer. One might raise the philosophical objection – replicating the debate of aims and effects in international trade law – that Chaya was not dismissed because of her Jewish faith but simply in ‘neutral’ application of company policy. I think this is splitting hairs. If, say, Columbia Law School had in place a similar policy of ‘neutrality’ it would mean that the illustrious Lou Henkin, one of the ‘fathers’ of international protection of human rights law, would have lost his job. I assure you he would not have removed his yarmulke. If asked why he lost his job, he most likely would have answered ‘because of my faith’; ‘because I am an observant Jew’. And if, hypothetically, the ECJ were to adopt a similar rule of neutrality as regards the attire of lawyers appearing before it, the distinguished British barrister, Shaheed Fatima QC would be excluded. I assure you she, too, would not remove her hijab.

2. King’s Transnational Law Summit 2018 (KTLS18). The Dickson Poon School of Law at King’s College London is pleased to announce the King’s Transnational Law Summit 2018 (KTLS18). The Summit takes place at historic Bush House, part of King’s College London’s Strand Campus, from 10-13 April, 2018. KTLS18 takes place at a crucial moment of deepening domestic, regional and global political change. Inspired by the political philosopher Hannah Arendt’s book ‘The Human Condition’, which turns 60 this year, the Summit will evolve around the theme of The New Human Condition: Creating Justice for Our Future. This inaugural Summit will place justice at the centre of a wider interdisciplinary conversation about democratic politics, socio-economic inequality, health equity and climate change in a volatile world. It is our hope to develop KTLS18 into a sustainable platform for an ongoing collaboration on some of the most important challenges we face today. View our programme of events and visit www.transnationallawsummit.org for more information. We will publish articles, announce speakers, and provide updates via @KCL_Law #KTLS18. Click here to reserve your ticket.

3. International Law: Courts and Contexts PhD Summer School – Call for Applications. The Centre of Excellence for International Courts (iCourts) and PluriCourts (Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order) are pleased to announce the International Law: Courts and Contexts PhD Summer School. The schools is aimed at PhD students working on international courts in their social and political context. We particularly welcome students whose PhD thesis involves a strong focus on methods and interdisciplinarity. Deadline for submitting application: 2 April 2018. Read more on our website.

4. Winter Courses on International Law. Registration is now open for the first edition of the Winter Courses on International Law: 7 – 25 January 2019. The Winter Courses on International Law are a new programme offered by The Hague Academy of International Law. The Winter Courses are organized following the same model as its well-known Summer Courses, including with a General Course and several Special Courses on topics of both Public and Private International Law, Directed Studies sessions for advanced students wanting to sit the Academy’s Diploma Exam, doctoral networking meetings for PhD students, presentations by legal practitioners from different institutions, visits to embassies and international organizations in The Hague and a variety of social activities. More information can be found here. Early bird registration at a reduced fee is possible until 30 April. Scholarship applications are accepted between 15 February and 30 April. See here to register.

5. Challenges to Judicial Independence in Times of Crisis. A few spaces left for the British Academy conference ‘Challenges to Judicial Independence in Times of Crisis’. This interdisciplinary conference seeks to situate contemporary challenges to judicial independence in their legal, philosophical, sociopolitical, comparative and historical contexts. It will bring together academic scholars, judges, politicians, third sector experts and legal professionals. The conference asks what core shared democratic values judicial independence seeks to protect, and how can threats to that independence be protected against. Date: Thu, 8 Mar 2018 – Fri, 9 Mar 2018 at The British Academy 10-11 Carlton House Terrace London SW1Y 5AH. See here for further information.

I am sure that many of our readers have their own views on their preferred international legal journal. But it is hard for me to believe that there will be many who do not assign pride of place to EJIL’s Book Review section under the editorship and curatorship of Isabel Feichtner. In the selection of books for review, in the rigour imposed on reviewers, in the exploration of different forms for featuring books she has made EJIL second to none. Isabel Feichtner is stepping down as Book Review Editor, though happily she will remain a member of the Board of Editors. She deserves our deep gratitude. Christian Tams has generously agreed to take over from her. We wish him every success.

It is the time of the year once more when I publish my pick from some of the books that came my way since my last ‘Good Reads’ listing. These are not book reviews in the classical and rigorous sense of the word, for which you should turn to our Book Review section. I do not attempt to analyse or critique, but rather to explain why the books appealed to me and why I think you, too, may find them well worth reading. They are listed in no particular order, except for the first one which is definitely my choice for the year.

Robert Caro, The Years of Lyndon Johnson, 4 Volumes (Alfred A. Knopf, 1982-2012)

I have a certain passion for political biography and like to think of myself as something of a connoisseur. Why it has taken me so long to finally sit down and read this much acclaimed treatment of Johnson might be because of its daunting length. A fifth and final volume covering his post-elections years in the Vietnam White House is eagerly awaited and apparently imminent. I am not going to prevaricate with the ‘one of the most’ formula. This is undoubtedly the finest of this genre that I have ever read. For those who might wonder why they should spend precious reading time on Johnson I would like to say that the “years” in the title are not just his years but a political and social history of the USA over half a century. Not many would be willing to set aside time to plough through all four volumes, though they amply repay the effort. But I most strongly recommend, as a second best, to read just Volume 4 (The Passage of Power). It essentially covers the period from Kennedy’s assassination to Johnson’s first year in office. It becomes a microcosm of the Johnson phenomenon. On the one hand, he was undoubtedly, and this is meticulously documented, entirely ruthless and politically (and in some measure financially) corrupt from his early days as a student through his days in Congress until his accidental ascent to the presidency. From those early days one gets the impression of a person interested in power (and winning, winning, winning) for almost its own sake. He understood the power of procedural command from his early elections in college politics until his commanding mastery as Majority Leader in the Senate. And the lessons we as readers learn about congressional politics remain illuminating, even essential, 60 years later, in understanding the tortured relations of, say, Obama and Trump with Congress. I would say an indispensable lesson. You don’t know what you don’t know until you have read such. And, of course, in our minds there is always the Johnson of ‘Hey hey LBJ, how many kids did you kill today’.

Now comes the ‘On the other hand’ which makes both the personality of Johnson so intriguingly complex and our judgment of him so difficult. He grew up in abject poverty – no exaggeration. He pined for the ham sandwich at school but could only afford the cheese one. He and his family literally scratched a living out of the barren soil on which they lived. Like Clinton decades later, he grew up with and alongside a black and Hispanic population in the most natural way. The result was, his greed for power and avarice notwithstanding, a person with a huge and genuine commitment to social justice and, miracle of miracles for a son of Texas, bereft of that visceral racism, not mere disdain for but real disgust towards blacks, which was so present in the South (and not only the South) of that era and indeed has not been fully eradicated today. In his deep feeling for the poor, he made no distinction between black and white.

The result was that in his first months in office as the Accidental President, combining his commitment to social justice and a lifelong honing of his political prowess, he managed to achieve infinitely more than Kennedy, fluent and charming, had managed to achieve in three years as President. Infinite is the right word since Kennedy achieved close to nothing. And he did so whilst risking his chances in the elections to come in November of 1964. The passing of the Civil Rights Act of 1964 – and he deserves the lion’s share of the credit – was epochal. And though he dropped what at the time seemed the centrepiece of civil rights, namely voting rights, true to his word to Martin Luther King, he passed that in his first year as elected President. His overarching Great Society legislation, the war on poverty and all that, though imperfect and still work in progress, changed America forever. In his domestic agenda he stands, in my view, equal to Roosevelt and, a matter of personal taste, more likable. It will be hugely interesting to see what Caro makes of Johnson’s Vietnam years in the pending final volume, though the impression given from his actions in his first year was that he was ‘out of it’, having neither an interest nor the experience to handle foreign affairs, and just ate out of the hands of those bright young mandarins he inherited from Kennedy, not least Robert McNamara. His sense of inferiority and mixture of disdain, fear and admiration for Bobby Kennedy are among the most riveting pages in the biography.

Caro manages what is rare in biography generally and political biography in particular, to demonstrate all along great empathy for his subject without confusing that with sympathy. He is sympathetic and antipathetic, praising and censorious in just the right measure.

I bought the four volumes in hard cover for a pittance on, quelle horreur, Amazon. This is not a good read – it is a compelling read.

No, I have not read all 1461 pages of this impressive work. It is, in mitigation, not the kind of book you read from cover to cover but one that you consult. And consult it I did, extensively, with great reward. It covers, take a deep breath: universal protection, regional protection, theories, foundations, interpretation, application, responsibility and remedies. It is a combination of both a Law Book and a book about the Law. Impressively researched, exhaustively referenced both to primary and secondary sources, surprisingly fluid to read, it gives in each of its sections the what, the why and the how of its topic. Here, too: not exactly a ‘good read’, but good to read.

Lauri Mälksoo, Russian Approaches to International Law (Oxford University Press, 2015)

There are IL books that one reads (or should read) not because they advance our own research agenda – to be processed into learned footnotes – but simply as a means of enhancing our general scholarly literacy, the way I know you all read EJIL or I.CON from cover to cover. Approach Mälksoo with this spirit and you will not be disappointed.

This is purely and simply a good read. It weighs in at just under 200 pages, and you can read it for pleasure in two or three sittings. You will learn an awful lot as well as become wiser – a good test for fine scholarship. The approach of Mälksoo is to explain the current Russian approach by an exploration of the preceding history or histories. I came to the book with a scant knowledge – what I had learnt from Nino Cassese’s illuminating International Law in a Divided World – which, for all its worth, did not purport to be Russia specific in its exposition of the Second World. Where one may have expected a story of ruptures and revolution one discovers some surprising continuities. Particularly insightful are the sections dealing with the relationship of international law to the domestic legal order, and I do not mean just in the technical sense of the issue.

I have always been dismissive of the huge literature on the Trial of Jesus before Pontius Pilate. We have scant external sources on the Trial so that our main reference are the Gospel accounts according to which Pilate was but the executive arm of the Sanhedrin before whom the principal, perhaps only, trial took place. Why so much writing then on the Trial before Pilate? It is, I reasoned, a classical so-called Streetlight Effect: the proverbial looking under the streetlight rather than where the key actually dropped out of your pocket. Since most scholars were familiar with Roman Law rather than Jewish Law they wrote about that which they knew.

I have never read anything by Schiavone that was not both original and profound. This book does not disappoint. He does not fall into the Streetlight error. The appearance of Jesus before Pilate is central but not forced into a legal straitjacket. What’s more, the book – elegant and brief – explores the personality and the circumstances of his governorship as well as reconstructing the Passion and the events leading to the crucifixion. There is a tension between the Pilate we know from history and his figure in the Gospel narrative. Schiavone navigates that perfectly. If it’s a long time since you addressed your mind to those events which reshaped history and what we call today The West, and not long ago, Christendom, you could do better than read this book. More of an Easter read than a Christmas one, but a good read at any time.

Eduardo García de Enterría, Fervor de Borges (Editorial Trotta, 1999)

García de Enterría was, until his death in 2013 at the age of 90, a figure larger than life in Spanish public law and in law generally. He served as the Spanish judge for several years on the European Court of Human Rights and his list of accolades extends from here till further notice. It is in this capacity that I knew him and even had the privilege to work alongside him on the Committee of Jurists of the European Parliament for several years.

Imagine my surprise when I discovered, just recently, a little book he wrote on Borges the poet. The title of the book is a play on Borges’ own book of poems Fervor de Buenos Aires. Despite having read more than once all of Borges’ short stories translated into English – and it seems that all have been translated – I was simply unaware of Borges as a poet, though his volume of poetry, I have now discovered, exceeds considerably his fictions. There are, obviously, some translations, but as an excuse for my ignorance, far less known. When you finally approach Borges the poet you will discover another reason for the relative anonymity of his poetry outside the Spanish speaking world compared to his short stories. The poetry is difficult – uneven, something it is hard to say about his stories – and not immediately accessible outside the cultural context in which they are situated. In my view this must be true for some of his poems even for those within that culture. And this is the great virtue of García de Enterría’s little book: it helps enormously in learning to understand, appreciate and be moved by the poetry. García de Enterría is categorical in his tastes and judgments – but these are fine and sensitive. He works his way (and yours) through a handful of poems and, like a good curator of a museum or art critic, pours light so that you can see the light.

Guy Fiti Sinclair, To Reform the World – International Organizations and the Making of Modern States (Oxford University Press, 2017)

Full disclosure – I already read an earlier version of this book when presented as a doctoral dissertation, though I was not a member of the examining board, and, as you will all know, Guy Sinclair is the Associate Editor of EJIL. Since these are not book reviews, but my personal recommendations, and since I found this a particular rewarding read, I did not think I should refrain from offering this recommendation.

This is another example of a Law Book that is also a book about the Law, which in recent years has happily become the Gold Standard of doctoral dissertations. You will get chapter and verse on the manner in which International Organizations manage their competences and manage to expand such at times with creative hermeneutics. But the book goes well beyond that. Sinclair advances a veritable thesis: that in some ways IOs have been captured by a Eurocentric liberal (and to some extent capitalist) world view (this is my rendition of the thesis) and nobly (or perhaps otherwise) are not simply in the business of world peace, international cooperation, motherhood and apple pie, but also in the business of exerting influence, even shaping the ethos and telos, structure and function of modern states, the cooperation among which is their more traditionally perceived function, or in more recent times, their ‘governance’ function.

There is a very fine-grained and rich analysis of the way legal structure and political process of IOs combine to produce the effect claimed. And the book is elegant and readable, you can actually enjoy the reading.

I am usually rather sceptical about edited books for reasons I explained in a previous Editorial. The topic of this volume intrigued me since there is rather a dearth of research and writing on the role of parliaments in the human rights universe, a discipline dominated by court-gazing and hermeneutics. When there are interactive studies they tend to be about judicial interaction, international and national, or, in recent times the rich (oh, so rich one gets indigestion) on judicial borrowings and the like. I was put off by the Introduction by the three editors, which was the usual fare for an edited book: some slight prefatory words on the project and a roadmap of the various chapters, which, I have often suspected, is there for lazy book reviewers. I am glad I read on since the actual chapters, including, even especially, those by the three editors are excellent, and what I found lacking in the Introduction was to be found in the concluding chapter by Matthew Saul – an analytical framework, a critical vision and a normativity in just the right proportions. The book is still, as it proclaims, court-centric, but focuses on the interaction of courts, notably European but also the Inter-American, with parliaments as institutions rather than parliaments as authors of violative or otherwise legislation which come before them. This is an edited volume which has managed to follow a rather tight scheme covering the various aspects of parliamentary involvement in human rights. Indeed, perhaps the biggest gain for me was that not having ever thought about this systematically, I learnt not only about the interaction but about how to think about the role of parliaments in ways that were new. Appropriately, all chapters fully internalized the need to situate the law in political theory of democracy and human rights. Social scientists might complain about a certain lack of quantitative empirical analysis – but let them, then, pull their sleeves up and fill the gap. An important, useful and, otherwise it would not be here, a good read too.

Bernard E. Harcourt, Exposed – Desire and Disobedience in the Digital Age (Harvard University Press, 2015)

The topic is not new; indeed, we are inundated by cries of woe about the power of the digital corporate dinosaurs, the invasion of our privacy, and the use made by them of the data mined by our internet-dominated lives. The value of this book, which Benedict Kingsbury and I used in our Seminar on International Law and Google as one of the key texts, is the trenchant, if passionate (not altogether unjustified, though at a certain point perhaps somewhat excessive and even grating) manner in which Harcourt walks us through this labyrinth and explains and demonstrates its profound implications for polity, our sociality and the human condition itself.

What I found most appealing in the book was the way the author eschews an easy narrative of villainous (American) corporations and government agencies which are either asleep or captured with us, you and I, being the victims of such. He puts a mirror before us and shows how we are at times willing accomplices in the culture of exhibitionism and self-exposure which is a hallmark of the age. Yes, at times our options are foreclosed, but this is oftentimes but a fig leaf, a weak alibi for our own exhibitionist and voyeuristic appetites.

I am not sure if Harcourt’s strategies of ‘disobedience’ can amount to more than gestures. But even if trapped, he will not let us off the hook as being ultimately, in the democracies in which we live, responsible also for the very structures in which we are trapped.

I am not sure if a ‘good read’ is appropriate in this case. And I am confident that once translated into English it will provoke a storm. The book cover lists the author as having worked for the Spanish Consejo Superior de Investigaciones Cientifícos and as having taught at Harvard. It is revisionist history of the Spanish Empire framed within a more general theory and phenomenology about the way empires, according to the author, provoke Leyendas Negras which could be rendered as ‘dark, malicious legends’. It has been a runaway best seller in Spain, subject to praise and harsh criticism (see for example in the XX Siglos blog the critique by Estaban Mira Caballos, 13 Sept. 2017). Roca Barea does not hold her punches. The Protestant European ‘North’ is one villain of the piece, Noam Chomsky another in her (in my view often insightful and in some respects original) discussion of Anti-americanism and there is more. With some shades of the Jamestown affair in our sister Journal of the History of International Law, Roca Barea invites us to reconsider downwards (not to whitewash) the scope and scale of Spanish atrocities in their conquest and rule over much of Central and South America and similarly of, say, the Inquisition in Spain – the conventional history characterized by her as Hispanophobia driven by, inter alia, Lutheran nationalism. She is at her best, I believe, not so much in the history and historiography of the Spanish Empire itself – about which one can cavil – as in her parsing of the texts and attitudes over the centuries, attacking such which, as she demonstrates persuasively, are marred, in an almost macabre twist of a twist, by distinct racist elements (the Spaniards as a degenerate race) whose moral fibre was corrupted – in a twist on a twist on a twist – by, surprise, surprise, Jewish influence. To my knowledge she is the first to subject such to critical analysis and in my view these parts of the book cannot be dismissed. It is the kind of book the intrinsic value of which will only be clear once it is subjected to the slow process of serious historical and historiographical analysis. This will not be easy, given the inevitable contemporary political mills for which the book has already become grist. I suppose that for many beauty or ugliness will be in the eye of the beholder rather than in the book itself. It is not exactly a ‘good read’ but, despite a certain polemical style, it is one that cannot tout court be dismissed as diatribe. Caveat Lector!

Should Roca Barea leave a mixed taste in your mouth, Rodríguez would be the perfect dessert to wash it away. Although he won the Prince of Asturias Prize for Letters in 1993 (six years before his untimely death from cancer at age 65) Claudio Rodríguez is relatively unknown outside literary circles, even in his home country of Spain. I discovered him just this last year and am still under the spell. His poetry is personal and exquisite – in form, tonality and delicacy of emotion, though extremely powerful, even shocking at times.

Alianza y Condena (Alliance and Condemnation) is a good place to start since it exists, too, in a particularly felicitous bilingual edition translated by Philip W. Silver, Emeritus Professor of Spanish Literature at Columbia. Here are a couple of excerpts to whet your appetite:

EJIL relies on the good will of colleagues in the international law community who generously devote their time and energy to act as peer reviewers for the large number of submissions we receive. Without their efforts our Journal would not be able to maintain the excellent standards to which we strive. A lion’s share of the burden is borne by members of our Boards, but we also turn to many colleagues in the broader community. We thank the following colleagues for their contribution to EJIL’s peer review process in 2017:

This issue presents a cornucopia of insights and perspectives on international law. It opens with a pair of articles that reflect EJIL’s long commitment to explore diverse theoretical and methodological approaches. First, Catherine O’Rourke combines theoretical engagement with an empirical, sociological methodology to offer a unique perspective on the engagement of feminist activists with international law. We invite readers to take a look at our EJIL: Live! interview with the author. Second, Anthony Reeves proposes an alternative approach to substantiating the right to punish, focusing on the capacity to respond to the reasons for punishment and analysing universal jurisdiction to show the improvements the alternative model makes.

The next set of articles focus on questions of responsibility. Luke Glanville examines the duty to protect human rights beyond sovereign borders, exploring the thinking of a series of Western natural law theorists both to expose the source of this duty in international law and to retrieve forgotten ideas that might be reconsidered. Sandesh Sivakumaran traces the ‘piecemeal’ emergence of an international law of disaster relief and analyses the general techniques by which this body of law is developing. Lastly, Jan Klabbers investigates whether international organizations can be held responsible under international law for a failure to act, introducing a conception of ‘role responsibility’ to address this thorny issue. We think it is a particularly valuable contribution on a trendy topic the literature on which is often characterized by a lot of hot air.

A selection of articles from the Fifth Annual Junior Faculty Forum for International Law exposes the innovative thinking of a new generation of scholars. Neha Jain considers the role of ‘radical’ dissents in shaping the discourse of international criminal law in the context of mass atrocities. Lawrence Hill-Cawthorne explores the nature of state and individual rights under international humanitarian law, and their relationship to a more general identity crisis in that body of law. Cheah W.L. examines the rule of law dynamics in war crimes trials pertaining to the desertion of British Indian Army soldiers conducted by British colonial authorities in postwar Singapore.

This issue’s Roaming Charges takes us to Bogotà where the solemnity of Ash Wednesday provides a moment of dignity.

We are pleased to present in this issue an Afterword to the Foreword written by Laurence Boisson de Chazournes, which featured in the first issue of this volume. Yuval Shany mostly agrees with Boisson de Chazourne’s account of an evolving ‘managerial approach’; however, he is less convinced that international courts are truly committed to such an approach or that such an approach is likely to succeed in future without more far-reaching reforms. Thomas Streinz suggests that greater attention could be given to who wins and who loses as a result of coordination among international courts and tribunals, as a way into exploring what motivates those efforts and how various actors contribute to them. Veronika Bilkova focuses on the normative dimension of the phenomenon Boisson de Chazourne describes, giving greater emphasis to the threats that managerialism can pose. Sergio Puig likewise strikes a note of caution that the evolution of procedures adopted by international courts and tribunals might result in suboptimal outcomes. Laurence Boisson de Chazournes offers a rejoinder to her critics.

Following the Afterword, we feature another Debate centring on an article by Yahli Shereshevsky and Tom Noah, who adopt an innovative experimental approach to assess the possible effects that exposure to preparatory work has on the interpretation of treaties. This is only the second time we publish an article in EJIL utilizing the methodology of ‘experimental law’ and appropriately it comes from the hands of two young emerging scholars. We encourage you to take a peek at the EJIL: Live! interview with one of its authors, Yahli Shereschevsky. Given the interest that is bound to be generated by this article, we have decided to present a long Reply by Jeffrey L. Dunoff and Mark A. Pollack, who reflect at length on the ‘experimental turn’ in the study of international law more broadly.

The issue closes with a Critical Review of International Governance by Rebecca Schmidt, who examines regulatory cooperation between public and private actors at the global level, grounding her analysis in the cooperation between the Olympic Movement and the United Nations Environmental Programme.

For the Last Page, the dust, heat, and sweat are almost palpable in Gregory Shaffer’s extraordinarily vivid poem of life and politics in Kathmandu.

The latest issue of the European Journal of International Law will be published today. Over the coming days, we will have a series of editorial posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the new issue. The free access article in this issue is Yahli Shereshevsky and Tom Noah, Does Exposure to Preparatory Work Affect Treaty Interpretation? An Experimental Study on International Law Students and Experts.

Here is the Table of Contents for this new issue:

Editorial

Je Suis Achbita!; The Trump Jerusalem Declaration and the Rule of Unintended Consequences; 10 Good Reads; A propos Book Reviewing; EJIL Roll of Honour; In This Issue

Articles

Catherine O’Rourke, Feminist Strategy in International Law: Understanding Its Legal, Normative and Political Dimensions

Anthony Reeves, Liability to International Prosecution: The Nature of Universal Jurisdiction

Focus: Responsibility

Luke Glanville, The Responsibility to Protect beyond Borders in the Law of Nature and Nations

Sandesh Sivakumaran, Extrapolation, Analogy, and Form: the Emergence of an International Law of Disaster Relief

Jan Klabbers, Reflections on Role Responsibility: The Responsibility of International Organisations for Failing to Act

New Voices: A Selection from the Fifth Annual
Junior Faculty Forum for International Law

Neha Jain, Radical Dissents in International Criminal Trials

Lawrence Hill-Cawthorne, Rights under International Humanitarian Law

Cheah W.L., The Curious Case of Singapore’s BIA Desertion Trials: War Crimes, Projects of Empire, and the Rule of Law

Afterword: Laurence Boisson de Chazournes and Her Critics

Yuval Shany, Plurality as a Form of (Mis)management of International Dispute Settlement: Afterword to Laurence Boisson de Chazournes’ Foreword

Thomas Streinz, Winners and Losers of the Plurality of International Courts and Tribunals: Afterword to Laurence Boisson de Chazournes’ Foreword

The legal protection of multilingualism is an important principle and an indispensable guarantee for the functioning of the institutions of the European Union (EU) as well as for their relationships with EU citizens. This is not only evidenced by Article 22 of the Charter of Fundamental Rights, which obligates the Union to respect linguistic diversity. Beyond that, legally protecting multilingualism is, as the European Parliament stated, “not a matter of communication only, but also a question of democratic legitimacy towards citizens and respect for the cultural diversity of the Member States. It affects the way in which EU legislation is drafted and interpreted”.

Multilingualism is also well established in the EU Treaties themselves, concluded between the Member States in 24 equally authentic languages (Article 55 TEU), which can be interpreted authoritatively by the Court of Justice of the European Union (CJEU) whenever necessary.

The practice of the European Union is quite similar with regard to treaties concluded with non-Member States. In particular, several free trade agreements (FTAs) concluded or negotiated with such states have been drawn up in no less than 23 or 24 equally authentic languages.

However, even though such practice promises public accessibility of legal documents and thus more transparency, it is – especially from the perspective of international law – highly questionable and should be carefully reconsidered. Article 33 of the 1969 Vienna Convention of the Law of the Treaties (VCLT) – a treaty which is regularly referred to in FTAs concluded by the EU, e.g. in Articles 8.31.1 and 29.17.1 of CETA – first posits that where authenticated in two or more languages a treaty has the same legal value, and is presumed to bear the same meaning, in each such language. With 23 or 24 equally authentic languages, one can only hope that everything goes smoothly. Serious problems arise if the comparison of the authentic texts discloses a difference of meaning, an event that is not so unlikely considering the complexity of trade and investment provisions. Unlike the CJEU, investment tribunals or arbitral panels exercising their jurisdiction under FTAs are likely to be ill equipped to interpret treaties concluded in such large numbers of equally authentic languages. Yet, even when the CJEU itself had to deal with multilingualism and diverging interpretations in Case C-36/98 Spain v Council [2001] ECR I-779, para 49. It cursorily swept away any concerns and declared that “[i]n the case of divergence between the language versions of a [Union] measure, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part […].”

Article 33(4) VCLT then directs the interpreter to apply Articles 31 and 32 of the VCLT. The first of these provisions contains a general rule of interpretation. The element of this rule directing attention to the ‘ordinary meaning’ to be given to the terms of a treaty (in their context and in the light of its object and purpose) immediately presents obvious potential for diverging starting points for interpretation, if extensive multilingualism is used. The second of these provisions governs the use of supplementary means and in particular the legislative history of the treaty. Applying these provisions is rarely a simple exercise and it may be expected to become rather arduous with 23 or 24 authentic versions of a text. Working with such treaties would provide the perfect ground to unleash lawyers with a taste for linguistic nuances and for particular niceties flowing from the legal systems most associated with each of the various languages. Lastly, if application of the general rule and supplementary means fails to yield the meaning, the interpreter returns to Article 33 VCLT which requires a (probably desperate) attempt to determine the meaning that best reconciles the 23 or 24 texts, having regard to the object and purpose of the treaty. Even assuming that it is possible to resolve the issues of interpretation by this means, the process is likely to be complex, time consuming and fraught with difficulties.

It is evident that Articles 31 to 33 VCLT are unlikely to function well (if at all) with such large numbers of equally authentic languages. Indeed, our argument is that the conclusion of treaties in 23 or 24 authentic languages

is a call for discrepant and inaccurate outcomes;

makes the treaty vulnerable to a multitude of potential interpretations which would be extremely difficult to manage under Articles 31 to 33 VCLT;

may be expected to complicate intolerably the settlement of disputes and inflate the related costs; and

ultimately undermines legal certainty (not to mention the risks of significantly slowing down the negotiations and increasing the costs generated by the treaty throughout its existence).

The number of authentic languages of FTAs concluded between the EU and other treaty partners should therefore be greatly reduced. One option could be to limit the authentic languages to the relevant UN official languages (English, Spanish and French) plus the language(s) of the counter-part, if appropriate. Incidentally, English, Spanish and French are the official languages of the World Trade Organization (WTO), whose jurisprudence the arbitration panels have to take into account in interpreting FTAs (i.e. Article 29.17 CETA). Furthermore, the UN Treaty Section recommends State to conclude treaties only in the UN official languages in order to facilitate their registration under Article 102 of the UN Charter.

Alternatively, the FTAs could be concluded in three or four authentic languages different from those used in the WTO and presumably including German and Italian. This option would have the advantage of better reflecting the main languages spoken in the EU, but the selection may require endless negotiations and be rather unpalatable to some Member States. As the lingua franca of international trade, English cannot be excluded, regardless of Brexit.

Another option is to agree that in case of divergence a particular text prevails. This option may be even more problematic than the previous two, or even impracticable when the counter-part’s language is not an official language of the EU (as in the case of the FTA with Vietnam).

Thus, from the standpoint of the law of the treaties, but also of common sense, concluding a treaty in 23 or 24 equally authentic languages seems most unwise. While legal multilateralism is of great importance, and must be defended within the EU (with regard to both EU treaties and legislation), it is not indispensable in the EU’s external relations and is likely to prove counter-productive from the standpoint of the FTAs concluded by the EU with third States.

The EU should seriously reconsider its practice and strictly limit the number of authentic languages. As happens with treaties in other fields, for practical purposes, ‘official versions’ (that is translations that have not been agreed as authentic, but prepared by competent international or national authorities) may reduce day-to-day difficulties in the application of treaties, it being understood that in case of controversy over interpretation authentic texts must be used. This may be unappealing to certain Member States, but in this case, practicality should prevail over national pride and parochialism.

While both the 2 February 2018 ICJ judgment on compensation and the 9 February 2018 IACtHR Advisory Opinion signify the central importance of international environmental norms to international human rights law, the methodological approaches taken by the World Court and the regional human rights court for Latin America reveal some sharp differences between these tribunals. In adjudging compensation for environmental damages caused by Nicaragua to Costa Rica, the ICJ took a rather ‘incrementalist’ approach to quantification and empirical proof for every head of damage asserted – a methodologically ambiguous and context-sensitive approach which is not easily replicable for future environmental cases, given the complex nature of environmental damages in any given dispute. The ICJ did not adopt Costa Rica’s theory of an “ecosystem approach” to damage assessment, and neither did it adopt Nicaragua’s position that “replacement costs” be used to estimate environmental damages. Unlike the IACtHR Advisory Opinion’s broad acceptance of States’ continuing individual obligations towards preventing transboundary harm that could ensue from infrastructure projects in the Greater Caribbean, the ICJ Judgment carefully reduced Costa Rica’s claim of compensation by delineating between Nicaragua’s compensatory duties as part of environmental reparations, and Costa Rica’s own environmental mitigation duties in the presence of foreseeable environmental damage. These recent developments suggest that, while it is recognized that all States share responsibilities towards environmental protection especially under the precautionary principle, the precise allocation of environmental reparations owed through compensation will not always lie strictly on the side of the State that is the environmental tortfeasor, at least where the ICJ is concerned.

The following subsections summarize the 2 February 2018 ICJ Judgment reasoning on compensation, the 9 February 2018 IACtHR Advisory Opinion, and conclude with some comments on methodologies used for damages assessment and environmental reparations, especially in the thorny form of lump-sum upfront compensation for environmental damage impacting present and future generations.

The ICJ’s Own Methodology on Environmental Damages

The ICJ first noted that the size of the area affected by Nicaragua’s unlawful activities is 6.19 hectares. (Judgment, para. 54). Using its “ecosystem approach” projecting loss, where it would take a 50 year period for the affected area to recover, Costa Rica claimed around USD$ 6.711 Million in damages, with pre-judgment interest of around USD$ 0.5 Million. On the basis of its “replacement cost” theory and invoking the amount of USD$309 per hectare (the amount paid by Costa Rica to landowners and communities as incentives to protect habitats under domestic environmental conservation programs) per year for a recovery period of 20 to 30 years, Nicaragua estimated that Costa Rica was not entitled to anything more than US$188,504.00. (ICJ Judgment, para. 20). The Court then clarified its position on its judicial discretion over damage and causation, given scientific uncertainty pervading environmental damages allegations:

“34. In cases of alleged environmental damage, particular issues may arise with respect to the existence of damage and causation. The damage may be due to several concurrent causes, or the state of science regarding the causal link between the wrongful act and the damage may be uncertain. These are difficulties that must be addressed as and when they arise in light of the facts of the case at hand and the evidence presented to the Court.Ultimately, it is for the Court to decide whether there is a sufficient causal nexus between the wrongful act and the injury suffered.”(Italics added.)

The Court did not elaborate on its own criteria for the sufficiency of the causal nexus, particularly when environmental damage arises from a State’s illegally wrongful acts.

With respect to valuation of damages, the Court recalled its ruling in Diallowhere “equitable considerations” were used to take into account the relative situations of parties to the case (see Dapo Akande’s comments on this case here), as well as the Trail Smelterarbitration’s reference to a 1931 United States Supreme Court decision in Story Parchment Company v. Paterson Parchment Paper Companythat held that, in cases of torts that “preclude the ascertainment of the amount of damages with certainty…it will be enough if the evidence show the extent of damages as a matter of just and reasonable inference, although the result be only approximate.” (ICJ Judgment, para. 35). The Court declared that “damage to the environment, and the consequent impairment or loss of the ability of the environment to provide goods and services, is compensable under international law.” ICJ Judgment, para. 42).

The Court drastically whittled down the amount of compensation owed to Costa Rica, to the amount of USD$120,000 for impairment or loss of environmental goods and services, USD$2,708.39 for restoration costs over the internationally protected wetland, costs and expenses at US$236,032.16, annual interest at 4% for the period from the 2015 Judgment and the 2015 Judgment on Compensation to US$20,150.04, and interest at 6% on these amounts when they fall due on 2 April 2018. (ICJ Judgment, para. 157.) The total amount adjudicated to Costa Rica of US$378,890.59 is just about 5% of Costa Rica’s claim.

Considering that this was a case where the Court examined experts back in 2015 to determine environmental damage, it was somewhat surprising that the Court did not also conduct an examination of experts to assess and estimate environmental damages (or at least the 2 February 2018 Judgment on Compensation is silent on this). Neither is there any reference in the 2 February 2018 Judgment on Compensation to consultations with independent experts (institutions, organizations, or individual scientists) by the Court pursuant to its powers in Article 50 of the Statute of the ICJ, given the kind of scientific uncertainty that was to be expected when estimating damages over a recovery period for the 6.19 hectare affected area (whether it was 50 years as asserted by Costa Rica or 20-30 years as asserted by Nicaragua). It is not entirely clear from the text of the 2 February 2018 Judgment on Compensation if the Court requested the Ramsar Secretariat (or any other international environmental organization, such as the United Nations Environmental Programme) to assist in this compensation phase of proceedings. Instead, the ICJ’s 2 February 2018 Judgment on Compensation reads somewhat like an itemized list of what the Court deemed to be reasonably appropriate – given the relative situations of the parties and Costa Rica’s own obligations to mitigate natural hazards, without clearly establishing the scientific or factual basis for each item of damage as attributable to the unlawful activities of Nicaragua.

The Court then pronounced that “it is appropriate to approach the valuation of environmental damage from the perspective of the ecosystem as a whole, by adopting an overall assessment of the impairment or loss of environmental goods and services prior to recovery, rather than attributing values to specific categories of environmental goods and services and estimating recovery periods for each of them” (ICJ Judgment on Compensation, para. 78) – curiously, without clearly elaborating what that “overall assessment” entails, and whether this assessment is itself predicated on reliable science regarding the assessment of short and long-term damages to internationally protected wetlands under the Ramsar Convention. Instead, the Court simply declared that the approach is “dictated by the specific characteristics of the area affected by the activities of Nicaragua, which is situated in the Northeast Caribbean Wetland, a wetland protected under the Ramsar Convention, where there are various environmental goods and services that are closely interlinked….such an overall valuation will allow the Court to take into account the capacity of the damaged area for natural regeneration.” (ICJ Judgment on Compensation, paras. 80-81).

In finding that Costa Rica was only entitled to US$120,000 for the impairment or loss of environmental goods and services of the impacted area in the period prior to recovery, and USD$2,708.39 for restoration measures, it was puzzling that – contrary to settled environmental compensation practices – the Court’s 2 February 2018 Judgment on Compensation does not indicate a baseline environmental assessment of the affected area ex ante before environmental damage from Nicaragua’s activities, a recovery period estimate (and the extent this is achievable naturally or through deliberate measures of Costa Rica at Nicaragua’s expense), as well as a cost of mitigation or remediation measures estimate for the said recovery period. Neither does it refer to Nicaragua’s duties of mitigation under the precautionary principle. Instead, the Court sparsely observed, among others:

“Costa Rica has not demonstrated that the affected area, due to a change in its ecological character, has lost its ability to mitigate natural hazards or that such services have been impaired…evidence before the Court suggests that both caños have subsequently refilled with soil and there has been substantial revegetation.” (ICJ Judgment on Compensation, para. 74.)

Because “there is no clear evidence before the Court of the baseline condition of the totality of the environmental goods and services that existed in the area concerned prior to Nicaragua’s activities”, the Court rejected the 50-year recovery period and also deemed it “incorrect to assign a single recovery time to the various categories of goods and services identified by Costa Rica.” (ICJ Judgment on Compensation, para. 76).

“…the most significant damage to the area, from which other harms to the environment arise, is the removal of trees by Nicaragua during the excavation of the caños. An overall valuation can account for the correlation between the removal of the trees and the harm caused to other environmental goods and services (such as other raw materials, gas regulation and air quality services, and biodiversity in terms of habitat and nursery).” (ICJ Judgment on Compensation, para. 79).

Nicaragua’s ‘corrected analysis’ estimating US$84,296 as damage to four categories of environmental goods and services (trees, other raw materials, gas regulation and air quality services, and biodiversity) is insufficient. Rather, “…the absence of certainty as to the extent of damage does not necessarily preclude it from awarding an amount that it considers approximately to reflect the value of impairment or loss of environmental goods and services…the Court, while retaining some of the elements of the ‘corrected analysis’, considers it reasonable that, for the purposes of its overall evaluation, an adjustment be made to the total amount in the [Nicaraguan] ‘corrected analysis’ to account for the shortcomings identified…the Court therefore awards to Costa Rica the sum of US$120,000 for the impairment or loss of environmental goods and services of the impacted area in the period prior to recovery.” (ICJ Judgment on Compensation, para. 86. Emphasis added.). Clearly, the Court used Nicaragua’s ‘corrected analysis’ as its reference point and then made adjustments from there – a choice of methodology that remains opaque and undiscussed throughout the Judgment on Compensation. Considering that the four categories of environmental goods and services implicate very different scientific considerations for their damages assessment (especially for biodiversity consequences which often depend on wholistic impacts assessment, or even factoring in climate change impacts on the affected area), it is surprising that the Court did not elaborate further on any evidence of scientific methodologies (whether submitted by the parties or drawn by the Court from independent experts) for damages assessment with respect to each of these categories.

The rest of the ICJ Judgment on Compensation (paras. 107-147) then proceeds to an itemized discussion of Costa Rica’s costs and expenses incurred in relation to Nicaragua’s unlawful activities and the monitoring costs over the affected area, such as costs of flights, cargo and transport, satellite surveys, among others. This itemized list – although too extensive to discuss in this post – is quite an interesting study of what the Court deems as “sufficient” documentary evidence in its judicial discretion to prove such costs and expenses (and provides a significant contrast to the high volumes of costs and expenses in investor-State arbitrations). The itemized discussion slashes Costa Rica’s claim of around USD$3.5 Million in costs and expenses, to less than 10% in the amount of USD$236,032.16. Notably, the Court does not allocate costs for legal representation fees (again, in stark contrast to investor-State arbitrations where this has become almost standard practice every time State responsibility is adjudicated).

The IACtHR Advisory Opinion on Marine Protection in the Greater Caribbean

The IACtHR Advisory Opinion (original in Spanish) establishes the fundamental nature of environmental rights to human rights, laying out a clear framework for States with respect to their shared responsibilities on marine protection over the Greater Caribbean region. Significantly, the Opinion refers to the long-term impacts of climate change on populations. The Advisory Opinion – as reported by an international non-governmental organization in English – establishes the following marine protection duties of the States in the Great Caribbean region”

Avoid causing “significant” environmental damage in and outside their territory, for which they must regulate, supervise and monitor activities that could cause harm.

Assure, among other things, the realization of effective and independent environmental impact studies, as well as mitigation and contingency plans for potential damages.

Cooperate with other States and provide them with information regarding risks to their natural environment.

Apply the precautionary principle to protect the rights to life and personal integrity due to serious and irrevocable environmental degradation, even when scientific uncertainty exists.

Guarantee the rights to public participation, access to information related to potential environmental harms, and access to justice in decision-making that could affect the environment.

One can observe, based on the above declaration, that environmental damages assessment with respect to the Greater Caribbean marine environment will be of a much broader, integrated, or wholistic nature, in contrast to the ambiguous “overall assessment” proclaimed by the ICJ in its 2 February 2018 Judgment on Compensation that ultimately ended up being fairly incrementalist and opaque on scientific reasoning.

Conclusion

While there is much to praise about the International Court of Justice’s landmark first Judgment on Compensation for environmental damage, some caution is warranted as to the Court’s methodology for damages assessment in environmental cases. The Court has been a leading tribunal in the declaration of environmental rights and duties, especially from its judgments on the Pulp Mills, Whaling in the Antarctic, and Gabcikovo-Nagymaros cases. However, the same objections on scientific evidence and methodology that Judges Simma and Al-Khasawneh raised in their landmark separate opinion in Pulp Mills have to be stressed again today. The Court’s reasoning in its Judgment on Compensation nowhere surveys the considerably evolved scientific landscape on short-term and long-term environmental damages assessment for complex environmental phenomena such as biodiversity, energy, air quality, and raw materials – as well as the climate change impacts that will also be felt in the affected area. This would have been a far more visionary Judgment – emulating the scientific bases for interlocking State responsibilities for prevention, remediation, and mitigation that were recognized in the IACtHR’s Advisory Opinion – had the Court at least transparently discussed the evidence before it and any use it made, if any, of the highly developed scientific resources of the international community today.

The trial at the International Criminal Court (ICC) of Dominic Ongwen, commander of the Lord’s Resistance Army (LRA), has attracted widespread legal and political debate. Much of the commentary has focused on the former child soldier’s status as a victim-perpetrator. Missing from mainstream legal discourse is consideration of another status Ongwen holds as a result of his alleged crimes: fatherhood. Relatedly, and more importantly, also overlooked is a group of victims of his crimes: children born as a result of rape. Within the LRA “forced marriage” system, thousands of children were born from the rape of girls held in captivity.

Drawing primarily upon the Ongwen case and the crime of forced pregnancy, this post considers the ICC’s role in recognising the rights of children born of rape and repairing harms against them, consistent with their right to reparation under international law. Stigmatisation within “post-conflict” communities is a key harm suffered by children born of rape, often driven by their perceived association with perpetrator fathers. The ICC’s capacity to redress or, inadvertently, exacerbate stigma against this group of victims requires attention.

International Criminalization and Stigmatisation

The complex relationship between stigmatisation and the international criminal justice project has come under scrutiny by scholars whose work has opened up avenues for further critical reflection. My research (see here, under “stigma and children born of war”) builds on this scholarship and, in particular, on Megret’s conception of stigmatisation as a principal, albeit hidden, function of international criminal justice. Drawing on practice theory, Megret exposes the ways in which stigma is often deliberately assigned to actors (primarily, the defendant) and conduct (the offences) through the institutional practices of the ICC. In contrast, my interest lies with excavating the unintended consequences of ICC practices which risk stigmatising a hitherto voiceless class of victims, namely, children born of rape.

Ongwen is the first defendant in international criminal law to be prosecuted for forced pregnancy. Within his 70 charges for war crimes and crimes against humanity, a number relate to the direct and indirect perpetration of sexual and gender-based (SGB) crimes.

Ongwen is charged with personally committing crimes of forced pregnancy against “his” forced “wives” and, for indirectly perpetrating other forced LRA “marriages” (see here). Alongside Kony and other co-perpetrators, he stands of accused of implementing the notorious LRA forced “marriage” system, in which young girls were abducted from their homes and distributed to LRA members as “wives”. Within this structure of gender-based discrimination and violence, an unknown but significant number of children were born of rape.

Caught Between Statutory Invisibility and Stigmatising Framing

Of the SGB crimes which have a “nexus” to children born of rape, forced pregnancy is the most direct. Codified for the first time in the Rome Statute, it is defined in Article 7(2)(f) as:

the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other violations of international law. (See also note 5 to Article 7(2)(f): “This definition shall not in any way be interpreted as affecting national laws relating to pregnancy”.)

The crime’s actus reus requires a woman to be (i) forcibly made pregnant and (ii) unlawfully confined (i.e. forced to remain pregnant). There are alternate mens rea requirements and a footnote to the crime. The latter reflects certain states’ attempts to prevent the broader entrenchment in international law of a right to reproductive self-determination and shield inconsistent national laws (see here).

On the face of this crime, the rights or existence of any children born of rape are not clearly visible. To the contrary, Carpenter suggests that the offence not only marginalises children as rights-holders, but frames and stigmatises them in law as “children of the enemy”. I expand on these points below.

Contextualising “forced pregnancy”

The crime of forced pregnancy was not formulated with the rights of children born of rape specifically in mind, but as part of a broader push to internationally criminalise gender-based war harms against women. Many constituencies negotiating the Rome Statute had the horrors of conflict in the Former Yugoslavia uppermost in their minds. In reports and ICTY jurisprudence, some evidence emerged that Bosnian Muslim women were raped by Serbian forces in detention camps, with the purported goal of producing children of a “different” ethnicity to their mothers (see here and here). Article 7(2)(f) was crafted largely to capture this situation, as reflected in its (first) “ethnically-motivated” intent requirement. However, this gain for group rights alighted scholarly concern that as an unintended consequence, the offence positioned and “othered” children born of rape as harm to their mother and her ethnic group. In effect, the crime implicitly adopts the patriarchal claim that a woman’s genes/identity are erased through her rape by a man of a different ethnicity, and that any children born belong to their “enemy” father. This “normative stigma” could be seen as reinforcing the lived, sometimes long-term rejection of children as non-members of their mother’s ethnic group. Across both ethnic and non-ethnic conflicts, within communities children’s identities have been linked to perpetrator fathers and stigmatised with collective names such as “Chetnik babies” (Bosnia), “children of hate” (Rwanda), “Kony’s children” (Uganda) and “los paraquitos” (Colombia). These names serve as thin labels for broader human rights risks and harms.

In Ongwen, forced pregnancy is not being prosecuted under the ethnic intent limb. Therefore, the possible transmission of “normative stigma” on this basis is not in issue. Nonetheless, the Prosecution Pre-trial brief in Ongwen refers to children he fathered as “his” children and an Experts’ report in Bemba (see below) starkly lists children born of rape as a “serious harm”. This language potentially engages similar discriminatory framing and narrative concerns. Importantly, it also evidences a potential conflict between the prosecutorial/sentencing and victim-centred goals of articulating and evidencing “harm” to one group of victims (“forced mothers”) while respecting the rights of another (children born of rape). In order to minimise the risk of doing harm to either group, the Court must be fully consciousness of the rights of all victims engaged by an offence and seek to balance any conflicts. Not to do so risks violating its obligations under the Rome Statute and International Human Rights Law.

The Obligation Not to Stigmatise children born of rape

The ICC has a clear legal obligation not to stigmatise children born of rape. Under Article 21(3) of its Statute, the Court must interpret and apply applicable law (including ICC offences) consistently with internationally recognised human rights, and without any adverse distinction founded, inter alia, on ethnic origin, birth or other status. The overarching non-discrimination obligation extends to all aspects of the Court’s functioning. It entails respecting victims’ rights by avoiding incompatible, ICC-generated harms at all stages. Acting consistently with internationally recognised human rights also requires the Court to respect and protect relevant rights through its mandates. The UN Convention on the Rights of the Child and the Convention on the Elimination of Discrimination Against Women are of particular relevance in the prosecution of “cross-cutting” crimes which impact on different victim groups, such as forced pregnancy. For children born of rape, the holistic application of the right to non-discrimination (i.e. the obligation not to stigmatise) and the principle of “best interests of the child” are key. For children and their mothers, the contribution of gender discriminatory norms towards the commission of SGB crimes and the “double-stigmatisation” both victim groups face in their aftermath must be recognised and redressed. In order to ensure that all ICC institutional actors understand and meet the Court’s obligations when prosecuting SGB crimes and those affecting children, clear, contextually and culturally-relevant guidelines must be in place. Currently, children born of rape are missing as a victim group in key public ICC policydocuments; perhaps suggesting a degree of institutional blindness which needs correcting.

Recognition of the Legal Victimhood of children born of rape

Despite the noted risks of ICC stigma allocation to children born of rape, a significant milestone has been reached in the Ongwen case. The Prosecution has specifically recognised children born of rape in LRA captivity as a category of victims (see here), consistent with their right to reparation under international law, reflected in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and its Guidance Note (see here, here).

The Court’s reparations mandate holds potential to contribute towards the reduction of “real-life” stigmatisation of children born of rape, as well as redressing broader harms. Clearly, before this stage is reached, the extent of Ongwen’s liability (if found guilty) and the class of victims who may benefit would fall to be determined. Nonetheless, I highlight below some key research findings which underline the nature, scope and longevity of harms suffered by many children born of rape in LRA captivity (see here, here, here and here).

Broadly, the harms causally linked to SGB crimes victimising children born in captivity comprise: (1) harms arising in captivity and; (2) harms arising outside captivity, in communities. These include physical, psychological, emotional, cultural, material and stigma-related harms. Unredressed harms multiply and amplify over time. In captivity, children endured starvation, disease, lack of access to medical care and daily exposure to violence. In communities, many struggle to access family and community belonging, encountering identity challenges, rejection, discrimination, violence and, relatedly, diminished access to food, education and healthcare. Stigmatisation of children and their mothers informs and exacerbates their social and economic marginalisation, posing long term challenges to their health, economic and psychosocial well-being. In addition, some children born in LRA captivity across the Great Lakes region to parents of different nationalities face statelessness; imperilling their present and future.

Transformative Reparations for children born in captivity

In determining what transformative reparations may mean for children born in LRA captivity, the fact that their mothers are often their primary carers is relevant. Children experience distinct harms and are in urgent need of psychosocial support, access to education, health, land and future livelihoods. However, equipping their mothers to better manage physically, economically and emotionally the demands of “forced motherhood” and the ongoing effects of SGB crimes, is likely to enhance the life chances of their children and ease complexities in the mother/child relationship. Livelihood projects in which children born of rape are co-partnered with other vulnerable children and “give back” to communities may also improve their economic security, while countering harmful stereotypes against them.

Despite their potential in redressing stigma and broader harms, reparations also risk creating perceived victim hierarchies which may add to the stigmatisation of children born of rape. To mitigate this risk, the ICC should work with trusted local leaders to sensitise communities before implementation. While recognizing practical and financial limits to the ICC’s, reparatory function, the ICC Trust Fund for Victims should be used in parallel, to benefit the broader community, all of whom suffered from the war.

Broader Marginalisation in Transitional Justice Processes

Following a recommendation in an Experts’ report to include children born of rape in the reparations process, the case of Bemba may leapfrog Ongwen in being the first to award reparations to children born of rape. While it is unclear why they were not initially included, this omission is symptomatic of the broader marginalisation of children born of rape in transitional justice mechanisms. For example, no children born of rape during the Colombian conflict have yet received reparations under the Victims and Land Restitution Law 1448. My research indicates that various factors are inhibiting children’s practical realisation of their legal rights. In this context, they include: practical, ethical and cultural barriers to being seen and identified as victims; fear of perpetrator retaliation; stigma and mothers’ “protective silences” around their birth origins.

Globally, there is a pressing need to ensure that as a matter of law and practice, the right to reparation of children born of rape can be safely and ethically realised. The Ongwen and Bemba cases (including any lessons learned) may be catalysts for “positive complementarity” with national courts/mechanisms and greater global consciousness of this victim group.

Conclusion

Despite the ICC’s potential to protect and enforce the rights of children born of rape, a clear tension can be observed in its “double-edged” practices of stigmatization. The Court must also seek to manage the risk of being instrumentalised as a legitimator and/or distraction from states’ failure to redress violations for which they bear primary responsibility. In Uganda, survivors and their children still await state reparations under a national transitional justice policy which remains politically blocked. This includes children born of rape as a result of violations by Ugandan state and other non-state groups. Finally, inattention and incidental discrimination of children born of rape is not unique to international law. It is part of a broader, global blindness to their existence and plight. Beyond the limited jurisdiction and mandate of the ICC, urgent, broader political and research efforts must continue to address the unique vulnerabilities and needs of this population.

This blog is informed by research she conducted at LSE, including fieldwork. It has been written in a purely personal capacity and does not reflect the views of HMG.

5. Call for Papers Deadline Approaching: Economic Constitutionalism: Mapping its Contours in European and Global Governance. The European University Institute (EUI) and the School of Law at the University of Portsmouth are organising a 2-day international conference to explore the function and nature of economic constitutionalism within broader constitutional processes in the European and global legal orders. The conference will be hosted by the EUI in Florence on 14 and 15 June 2018. The deadline for submission of abstracts is 28 February 2018. For more information please visit the conference webpage.
6. AHRI 2018: Renewing Rights in Times of Transition – 70 Years of the Universal Declaration of Human Rights. On 7 and 8 September 2018, the Edinburgh Global Justice Academy is hosting the annual AHRI conference at the University of Edinburgh Law School. The Association of Human Rights Institutes (AHRI), is a network of 62 member institutions from across 33 different countries that carries out research and educational activities in the field of human rights. Each year, the AHRI conference aims to bring together human rights researchers from across the disciplines, to facilitate the exchange of ideas and collaboration, and to promote research, education and discussion in the field of human rights. This year we celebrate the 70th anniversary of the Universal Declaration of Human Rights (UDHR). At the time of its adoption, none of the drafters nor the UN General Assembly could have calculated the movement, norms, and practice relating to human rights for people across the globe that would grow from the document. The 70th anniversary of the UDHR presents a perfect opportunity to take stock of how far we have come and how far we have to go. See the call for papers here.

In the movie Shadowlands, the character C. S. Lewis says, “We read to know that we’re not alone.” For me, perhaps it is also true to say, “I write to know that I am not alone.” Implicit in Is International Law International? is a series of questions: Have you seen what I have seen? Do you analyze it in the same way? If not, what has your experience been and what do you make of that? How and why are your reactions similar to or different from mine? And what does that mean regarding whether international law is, should be and can be international?

I want to thank EJIL: Talk! and Opinio Juris for hosting, and the contributors for engaging in, this sort of dialogue. Two common themes of the contributions are that my book represents the start of a conversation rather than the final word and that it provides a platform for future research. I agree. My book is a big-picture macrosketch based on detailed microobservations that seeks to challenge existing understandings. A lot of details need to completed, analyses tested, additional points noted and implications thought through. In the spirit of continuing this exchange, I offer some reflections below.

Before doing so, I wanted to note that, reading the comments, I was struck once more by how much we approach international law from our particular national perspectives. Whether it is Vera Rusinova reflecting on international law through the iron curtain, Hélène Ruiz Fabri drawing connections with debates in the French literature, Marko Milanovic considering the differences he has experienced in the US and UK academies, or Bing Bing Jia providing insights into Chinese international law textbooks, each of us brings our biography into play when analyzing our field. Of course, this observation is part of the point of my book. But it also means that we won’t be able to access the richness of this variety, in both sources and perspectives, unless we diversify our interactions and networks.

Risks and Discomfort

Ruiz Fabri was very perceptive in noting that writing a book like this was a “risky enterprise” and that it “might be a good way to displease many people.” This book indeed deals with touchy subjects. On the personal level, it suggests that we international lawyers are often not as cosmopolitan as we like to think. On the political level, it raises awkward questions about the implications that might flow from different understandings of and approaches to international law in light of changing geopolitical power.

Although the book deals with controversial issues, I think it needed to be written. I am drawn to academic issues that intrigue me or make me feel intellectually uncomfortable. This book did both. Just as many readers have felt unsettled reading it, so I felt unsettled writing it. I coped with that discomfort by seeking to render as balanced a picture as I could, typically presenting both sides of issues rather than taking a normative stand about which one I thought was preferable. I showed that strengths often contain weakness and vice versa. I subjected myself to the same critique as I asked my readers to undertake.

Given the potentially provocative nature of this book, I want to thank my OUP editors John Louth and Blake Ratcliff for supporting it. The book was unlike anything I had done previously. It did not conform to standard approaches to legal scholarship. It was clear from the outset that the work would involve shaking echo chambers and had real potential to offend. Despite these risks, they immediately and intuitively understood what I was trying to do, from our first coffee chat. I am genuinely grateful that they were unwavering in their support and insightful in their critiques.

To my surprise, instead of encountering a wall of hostility, my book has opened rather than closed dialogues. I have received emails from all around the world and often my interlocutors shared personal stories about their experiences of the divisible college of international lawyers in both academia and practice. For instance, much to my regret, I was unable to include an analysis of a Latin American state in the book. Instead of spurning it, numerous Latin American scholars have reached out to tell me their side of this story (e.g., Francisco-José Quintana about the problems with teaching the Falklands/Malvinas dispute in Argentina using UK textbooks).

The book is an invitation for self-critique and dialogue. I hope that it prompts many conversations, even if some of them are uncomfortable. Academia is meant to challenge the status quo and shake up things up. Taking risks is part of the point.

Methods and Layering

In reading the book, Ruiz Fabri found herself wondering about its nature. Was it “A sociological inquiry? A manifesto? A plea? Against arrogance? Against a new Empire? For comparison? For pluralism? Maybe a bit of all this?” This is an insightful question and one that I have pondered more since writing the book. It is also one that Paul Stephan astutely, if partially, answers.

I have come to see this book as embracing what sociologist of globalization Saskia Sassen describes as a “Before Methods” approach. Complex global phenomena and emerging or underanalyzed issues are helpfully dealt with by first stepping back and seeking to destabilize our existing understandings of the world and the conceptual frameworks we use to describe it. Often particular concepts, framings and metrics obscure as much as they reveal. This approach requires one to sketch and project, and to connect microobservations to macroforces in an iterative observational and analytical process.

As Stephan notes, such work must be done analytically prior to many other projects: my book “strips away preconceptions and mystification” with a view to setting the scene for social justice projects and instrumental and empirical analyses. For instance, although the book engages in some empirical analysis, it doesn’t pretend to be exhaustive or a champion of sophisticated methods. Similarly, the book describes and explains international law and lawyers’ fragmented reality but does not take the next step of providing a normative framework for assessing which approaches are better or worse.

Good scholarship is often completed in layers. As Stephan concludes, this book “expose[s] the forces that bring about systematically different cultures of international law in different parts of the world” but leaves others to explore “the link between disaggregated cultures and the international law that results.” It is the horse before the cart. It seeks to open our eyes to many issues, analyze their origins and effects, and provide a framework and vocabulary for talking about them. The book doesn’t answer every question but makes many new questions possible.

The same sentiment underlies Rusinova’s conclusion that the effect of this book will ultimately depend on what other international lawyers do with it. According to Rusinova, the book should be understood as a challenge to international lawyers to ask themselves, “Do I realize which boundaries surround me in the discipline and am I, at least, trying to act above them?” Thus, she concludes that “it is in our own hands to make [the book] change the ‘world of international law.’” Yet, as Ruiz Fabri notes, much will turn on how those in the privileged inner circle (the “International Bubble,” as she calls it) respond to the critique.

Promise and Perils

Jia’s contribution constitutes a very good example of analyzing the promise and perils of comparison. As Jia notes, and as I found through my study, although textbooks and casebooks from some states contain good information about the practices of those states, that does not hold true for all states. In particular, Chinese international law textbooks often draw heavily on the approach of Oppenheim and Brownlie and feature little Chinese practice or views. If these books weren’t written in Chinese (a bit of a giveaway), I could easily have mistaken them for not being Chinese, except for their treatment of a handful of issues like Taiwan and the South China Sea.

Any metric that one uses to compare international law or international lawyers across states will be limited because metrics that make sense in one context often don’t make sense in another. This problem is one of the perils of comparison and it explains why one needs to adopt many approaches and metrics to build up a more complete picture. But it is also part of comparison’s promise. Thus, rather than accept the status quo, Jia suggests that the time has come for China to adopt a new generation of international law textbooks that, among other things, give the reader more information about China’s approach. I concur.

How such a development plays out remains to be seen. The future for Chinese international textbooks seems caught between two forces. On one side, some academics are developing casebooks that are much closer to US-style casebooks, particularly in international economic law. On the other side, the Chinese government has stepped up its censorship of academics and has now sponsored the creation of a quasi-mandatory textbook on international law that is meant to feature Chinese socialist characteristics (though these attributes are apparently pretty sparse in the first edition). This struggle between nationalized, denationalized and westernized approaches is happening before our eyes and may evolve differently with respect to form and substance.

Censorship and Judgment

The last point on censorship links to an important factor that Milanovic and Julian Ku highlight. Not all states have robust traditions of academic freedom or free speech more generally. If we are going to diversify our networks and sources, how should we assess scholarly opinions coming from authoritarian states like China and Russia where there is evidence of significant external and internal censorship? This issue arises in my book in the discussion of textbooks and in my account of the virtual uniformity of Chinese and Russian academic views – as well as their conformity with the positions of their states – with respect to the South China Sea arbitration and Crimea, respectively.

I agree with Milanovic that this issue arises in my book but deserves more explicit attention in comparative international law work going forward. In fact, I am currently working on a piece with a colleague addressing this very issue. But I disagree with Ku’s conclusion that adopting a comparative international law approach necessitates descending into pure relativism. As I say in the book, recognizing “differences in the way international law is understood, interpreted, applied, and approached can be examined without adopting a relativist stance that all positions are equal” and “[w]hether a given position reflects international law depends on many factors, such as the number of states that support it [and] how widespread and representative they are as a group.”

Although I deliberately refrained from making legal judgments in the book as my purpose was to identify, explain and analyze the divisible college, I am not averse to people reaching such conclusions. Much of this is a question of sequencing. My suggested approach is: (1) seek to engage, listen and understand, (2) seek to test your assumptions and argue your position, (3) identify and justify your framework for assessing different positions, and (4) engage in judgment. I emphasize steps one and two in my book because too often I see international lawyers go straight to step four, missing steps one and two and simply assuming step three. Steps one and two are crucial for building knowledge, self-awareness and networks. For international law to move forward, however, one of the central challenges will be deciding when to recognize divergent interpretations as valid and when to conclude that some venture beyond the pale (step three). And this may end up being contested.

In developing such frameworks, we all need to be attentive to our blind spots and biases, but we should also pay attention to those of other national communities. I agree with Milanovic’s conclusion that the international reputation of a group of national scholars will depend significantly on their ability to take positions that are independent from those adopted by their state. Discerning the dividing line is most difficult in academies, like the Chinese and Russian ones, that have what Milanovic describes as “some non-negligible level of academic freedom.” Levels of freedom are also likely to vary across fields and issues. Scholars might have more freedom with respect to international economic law and less concerning core national interests, for instance. Although this will always be difficult to judge, it is much harder to do so if you don’t have networks in and knowledge of these academies.

In terms of the South China Sea case, I agree with Ku that the uniformity of the Chinese scholars’ views on the South China Sea worked in the end to damage their credibility and that their “going out” approach worked hand-in-hand with the government’s media campaign. However, at least based on my networks and knowledge – which are necessarily partial and subjective – I think that Western international lawyers often dismiss the objection of Chinese scholars to the SCS tribunal’s jurisdiction as being purely politically motivated when my sense was that it was usually genuinely held. By contrast, I believe that politics were at play behind the lack of criticism by some mainland Chinese scholars of China’s refusal to participate in the arbitration and abide by the award.

In addition to considering academic freedom, we also need to be aware of other socializing and incentivizing factors that might influence academics to align with their states, such as the media they watch, unusually close connections between academia and government (as in the United States) and the strategic use of research funding (as in China). Indeed, Milanovic notes that the United States has a strong tradition of freedom of speech, but non-US international lawyers often find strong synergies between the positions of US international lawyers and the US government and frequently credit that, in part, to the socializing and incentivizing factors that come with the US government/academic revolving door.

We also need to be mindful about how a failure to engage can be interpreted as an unwillingness to listen and how the Western dominance of so many international institutions creates concerns about exclusion and bias. In my book, I document systematic patterns of non-engagement across communities and lack of diversity in international institutions that have nothing to do with concerns about censorship. US academics do not generally ignore French scholars because of concerns about academic freedom. The frequent invisibility of Latin American scholarship and cases within Western international law circles has nothing to do with a concern about propaganda. There is a lot more we could do to diversify our knowledge and networks. And if we are more inclusive on steps one and two, and more reflective and explicit in how we ground our evaluative frameworks in step three, then our ultimate judgments in step four will deserve greater weight.

Conclusion

The obvious question to ask at the end of this back-and-forth is, What’s next? Many of the contributors identify where one could take a scholarly agenda from here, for example, from developing and testing instrumental theories about the link between cultural differences and approaches to international law (Stephan) to encouraging greater internationalization of self-contained academies (Rusinova). One can imagine greater in-depth studies of specific national approaches and larger empirical cross-national comparisons.

My book also works as a springboard to larger normative questions, such as what the existing diversity means for finding and justifying “international law,” especially in an age of shifting geopolitical power (Ku). These questions are currently being addressed by projects such as International Rule of Law: Rise or Decline? As I say in the book’s conclusion, I began the project by seeking to change the question from whether international law is law to whether it is international, but perhaps the challenge of our generation is in recognizing that these questions are inextricably linked.

Professor Roberts’s thought-provoking book prompts many questions. My preliminary thoughts consist of two strands: one concerning the comparative approach endorsed in the book with regard to identifying similarities and differences in national and regional approaches and seeking to understand why and when these occur (Roberts, p. 33); and the other, concerning Chinese textbooks on the subject of international law. It is presumed that the word “approach” (ibid, p. 36) in this context chiefly refers to that of states, rather than that of academics and textbooks written in those states, unless the approach taken in the latter coincides with that in the former. Such coincidence, it is submitted, requires the adoption by textbook writers of a practice-centred methodology which, however, may not be prevalent at all law schools and at all times. Where the coincidence does not exist, the textbooks could be unhelpful in explaining the reasons underpinning the approach of the country, due to the proverbial gulf between practice and academia that exists in many countries. Such textbooks may never become more than attempts at second guessing of the approach of the country.

The Comparative Approach

The wise call for international lawyers to become “more humble, open and reflexive in their engagement with international law” by adopting the comparative international law approach (ibid., p. 325), is sounded after an in-depth survey of the works of a select group of lawyers, academic or practising, of the five permanent member states of the UNSC (“Big Five countries”), sometimes based on direct contact with some of those lawyers.

I wish to make four general points, with the caveat that, although these points may have been touched upon in the book, further reflection is warranted from the reader’s perspective due to their importance.

First, resort to the comparative approach to law-making in this field might not be different in effect from, for instance, the exercise of the International Court of Justice (ICJ) in finding and applying international custom or “general principles of law recognised by civilized nations”, under Article 38 of the Statute of the International Court of Justice (ICJ Statute). On the one hand, in the formation of customary law, a comparison of national approaches—in the form of state practice—is integral to the evaluation of whether and how the rule is formed, by or among which states, and what it is meant to regulate. That exercise would involve consideration of different national or localised proclivities (eg, Xue HQ, “Chinese Contemporary Perspectives on International Law”, Recueil des cours, vol. 355 (2011) 40, p. 53). On the other hand, as the general principles of law under Article 38 are regarded as rules of international law to be applied in a given case, the comparative approach, whereby they are distilled from different national laws, seems to have been around for a long time (H. Lauterpacht, Private Sources and Analogies of International Law, Longmans, Green and Co., 1927, pp. 69-70; F. A. Mann, “Reflection on a Commercial Law of Nations”, 33 British Yearbook of International Law (1957) 20, 34-39, esp. 36). The Erdemović case before the ICTY (Case No. IT-96-22-A, Appeals Chamber, Judgment of 7 Oct. 1997) was a relatively recent example of this approach. Controversial as the majority decision might be on the issue of duress in international criminal proceedings, the underlying research into the legal systems of various countries in relation to the issue was not–especially considering that, in that case, all of the appellate judges used the research to form their (diverse) opinions. On a general level, recourse to the comparative approach is presumably aimed at finding “correct” solutions to legal issues (Roberts, p. 22). However, the comparative international law approach may, for now, bring forth a result which could equally be reached by operation of the existing doctrine of sources of international law, embodied in the provision of Article 38 of the ICJ Statute.

There is, secondly, a point with regard to the focus on the academics and textbooks of the Big Five countries. Can a comparison of them really lead to a better understanding of what is considered to be international law for each of those countries, not to mention other members of the international community (this being said in view of the generality of certain unanswered questions raised: ibid., pp. 321-322)? Traditional ways of law-making by treaty and custom in this field at least involve the great majority of States in the world, and the word “international” is apt to describe the legal order thus created by them. If the perception of that legal order’s rules is built on the works of a select group of international lawyers from the five countries, could the rules so stated or asserted by the lawyers be generally accepted as authoritative (and international)? Moreover, the focus mentioned above might not account for the role played by lawyers of other countries. Furthermore, while recognising the fact that the influence of western-trained lawyers in general and of those of the UK, the US and France in particular, has been considerable in this field, there may be a lingering doubt as to whether such a training itself could sway judgement of non-western lawyers involved in diplomatic negotiations, judicial proceedings, or teaching and research in non-western countries’ academies. It should also be noted that there is a divide between academia and practice even in the Big Five countries, with perhaps the exception of the US (ibid., pp. 110-124). This divide raises a question as to whether the select group of lawyers can accurately represent the practice of their own countries in textbooks, considering that their views are not only personal, but are also likely to be rather detached from the real-time action of government lawyers in upholding national interest by means of international law. If so, the textbooks, updated only at intervals of every several years, may not capture the cause or rationale of national approaches that constantly evolve; on the contrary, they could be misleading, if not updated, for a foreign lawyer who seeks to find out about the true legal reasons in support of a national approach in a particular event–say, the Russian approach to the issue of Crimea.

Thirdly, the comparative approach would require language skills, as has been noted copiously (ibid., pp. 92-104；260-272). It seems that to master even the four languages of Chinese, English, French, and Russian for just the purpose of writing a legal opinion would be no mean feat, and the chances of having a sizable pool of lawyers of this calibre are slim, based on this reader’s personal experience. Even if that level of language skills could be managed, the lawyers of that category might still have to contend with the understanding of textbooks in German, Arabic, Italian, Spanish, etc. How many languages would need to be mastered for a truly comparative approach? The reality, as observed in the book, is that most of the international lawyers of the Big Five countries publish in their native language as a matter of course, and with that, the comparative approach, even in truncated form of relying on two or three languages to teach and research, would have little luck to be adopted in their law schools.

Fourthly, as a personal view, there is no necessary link between a particular language and a type of understanding of international law concepts or a national approach. It is the substance of the national approach that is controlling. Language is a medium whereby the approach is described. For instance, the English and French languages, even mastered to a level equal to that of those who speak it as a mother tongue, may easily be used to expound values or perspectives that are neither Anglo-Saxon nor French.

Chinese Textbooks on International Law

The book has highlighted some general features of the Chinese academia in this field (for instance, ibid., pp. 33, 156). Without wishing to comment on all of its findings in this regard, three points are raised to stimulate further discussion.

First, there are different understandings of a “treatise-like” textbook (ibid., p. 33), as opposed to “books of cases and materials”, since it may not be easy to agree on a common standard for a treatise. There are several foreign textbooks that are, in my view, treatises, widely referenced in Chinese law schools (ibid., p. 174). But there are also numerous Chinese textbooks which, on a cursory account I did a decade ago, stood at over two dozens and have since surpassed 30, and which do not treat the subject of international law in the same way that Oppenheim’s International Law or Shaw’s International Law does, in terms of substance and style. Which genre will in future dominate in Chinese law schools would be worth looking at.

Secondly, reliance on case law is not necessarily symptomatic of a “westernized” style. Public international law has its vast repertory of cases delivered by international courts and tribunals, as well as those by domestic courts and tribunals applying international law, with the decisions of the ICJ, with its diverse and representative Bench, being as authoritative as it gets for the determination of rules of international law. This fact has not been lost on Chinese international lawyers, even though the textbook writers among them often tend to be sparing in referencing case law.

Thirdly, for all the splendour of works such as Oppenheim’s International Law, which has inspired two leading textbooks–both chiefly edited by the late Judge Wang Tieya–for Chinese law schools (ibid., pp. 140, 160), it may be time for Chinese textbooks to move on with times. This moderate call for adjustment in substance and style should come as no surprise, in that even teachings of the most highly qualified publicists, to use the expression of Article 38 of the ICJ Statute, may become rusty in the fullness of time, which point is proved by the need for new editions or revisions that often span decades. To cling to a classical version of international law reveals a great deal of deference to tradition but also quickly results in stagnation. Influential ideas in the history of international law need to be re-examined and re-invented in the light of contemporary conditions to remain relevant to the fast changing geopolitical landscape of today’s world. For Chinese lawyers, a fair share of treatment of contemporary Chinese practice should also be more readily found in their future textbooks. Indeed, from hindsight, it seems that what secures the vaunted position in the Chinese academia of Oppenheim’s treatise and Brownlie’s Principles may be their practice-centred methodology that acknowledges the importance of comprehensive proof, legal reasoning, and of course, original thinking. Textbooks only introducing others’ views or summarising points for exam purposes can neither generate nor sustain interests of the targeted readership–whose enthusiasm determines the longevity and popularity of the discipline in national law schools; nor can they bridge the gulf with practice, thus being unable to claim a role in the clarification of a state’s approach to international law.

In her monograph Anthea Roberts has drawn a comprehensive portrait of International Law – she has intentionally limited her study to the current, mid 2010s period of time, refraining from diving too deep into history and from speculations on future developments. Now as a real artist the author steps back from its masterpiece and lets the audience draw their own conclusions, check the accuracy of results and data in accordance with their knowledge, and compare a presented image with their own perception of the scene.

In my contribution I try to juxtapose images and impressions collected from a reading of Anthea Roberts’ monograph with my own, and reflect on possible forces which might be able to make International Law ‘more international’.

Visible and invisible curtains and walls

For me the main features of the portrait of contemporary International Law drawn by Anthea Roberts seem to be best defined by notions, such as ‘curtains’ and ‘walls’. ‘Iron curtain’ as an expression is linked to the system of fire protection used in the theatres and later on, thank to Sir Winston Churchill, it became a famous political idiom describing the system of self-isolation used by the USSR to preserve and separate the socialist world from the outside influence. In August 1961 an already existing ‘iron curtain’ between the communist East and capitalist West materialized in the construction of the Berlin Wall. In 1963 when President John Kennedy of the United States visited West Berlin, even the Brandenburg Gate had been draped with a curtain that did not enable inhabitants of East Berlin to see him.

This ‘iron curtain’ was a comprehensive political and legal regime of restrictions and totalitarian control over the all spheres of social life. It is not surprising that Professor Grigory Tunkin, one of the most well-known Soviet international lawyers (who headed the Legal Department of the Ministry for Foreign Affairs, was a member of the ILC, the Institut de Droit international and the Head of the Chair for International Law at the Moscow State University) described in his diary how he took any opportunity to work in libraries in the Hague, Geneva and New York in order to introduce ‘western’ approaches to the Soviet audience, being fully aware of his important and unique transmitting mission.

Of course, all these stories have for many years belonged to history. The Berlin Wall fell in October 1989, the Soviet Union dissolved in 1991. We are now living in a different reality of globalization, accessibility of intellectual resources, open or at least relatively open borders, not speaking about the ubiquitous Internet. But despite all these changes the current picture of International Law is dramatically full of borders. However, those borders are not enshrined as inevitable constraints, which as a result of implementation and application of universal norms in almost two hundred different national legal systems push us to justify the existence of Comparative International Law. No, these are ‘curtains’ and ‘walls’ in the professional community, which make a ‘college of international lawyers’ ‘divisible’ (Anthea Roberts 51 et sq.).

We can dispute, how far from the truth Oscar Schachter was when in 1977 he wrote about ‘invisible college of international lawyers’, but what makes the division in international legal academia, so thoroughly traced by Anthea Roberts, so strong now? The reasons thereof comprise, but are not exhausted by historical (i.e. empire, heritage or ideological infighting) or geopolitical precursors, because roots can be also seen in an enormous expansion of the substantive field of International Law and proliferation of its institutions, which led to a challenging shift of education of International lawyers from being rather elitist to a mass one.

What shapes our ‘divided’ communities is where we study, which languages we speak, which publications we read and use in our research and teaching, in which journals and in which languages we publish (Anthea Roberts 51-128). Borders evolved between these communities should be better qualified as borders not of International Law itself, but of its discipline, which in many ways influences and shapes the law. So it is much more about “how we think about law” than “how the law is done” (seeAndrea Bianchi 6-8).

It is a tragedy for the discipline when the presence of these borders is not even realized or perceived. It may be because of an inert or ‘traditional’ thinking or frames of the language, which just does not allow us to look ‘outside’. Another situation is when the presence of the borders are perceived, but due to either imperial incentives, or due to a feeling of being a strong (or the sole strongest) party in the game, it is enough to formally pretend to play on an equal footing. And, finally, a third case: these borders can be used as a saving remedy. Just imagine, how many theses have been successfully defended in different countries because it is enough to ground that an author was the first to approach this topic in “National legal thought”. How many professors have maintained their chairs almost life-long, despite the fact that they knew no foreign language? How many articles have been accepted since it was not necessary to cite foreign sources? And this is not a speculative ‘what-if’, but a striking reality in some countries.

If the failure to perceive boundaries leads to a ‘naïve provincialism’, a protective usage of them should be described as a ‘comfortable provincialism’. Anyway, in all these scenarios of not listening and not being heard degradation of research and teaching of International Law is unavoidable. However, as a positive forecast, these processes would also lead to a renaissance of legal thought in a state or even in a region. A sole particular question relevant for a particular individual living in the here and now is how long would it take until these changes come? A more complicated case is an intentional not listening scenario based on abuse of a powerful position of a state or states. How could this imperial position be shifted?

Searching for Driving Forces for Internationalization of the Discipline

So, which driving forces are able to stir the pot and dissolve the boundaries? Would reading of Anthea Roberts’ book and awareness of existing ‘curtains’ and ‘walls’ alone change the professional field so intensively that as Martti Koskenniemi put it in his blurb to this monograph ‘nothing …will be quite the same’?

Taking into account that driving forces for these changes can be different by their nature (epistemic, economical, political), by subjects embodying them (global, regional and national, governmental and non-governmental etc.), I will confine myself to the following three.

Firstly, in our discussions and search for an appropriate scientific method or methods of International Law (AJIL Symposium on Method in International Law, ESIL Research Forum and a recently published book ‘International Law as a Profession’) we should be, at least, united in depicting criteria for these methods or ‘scientific values’ (Anne Orford 372), which alongside with rationality, consistency and provability comprise objectivity. Realization of objectivity (being different from universality) as an element of a scientific method would require from every researcher to realize and overcome any individual, institutional and national limits he or she might be bound by when analysing the substantive field.

Secondly, it should be admitted, that the piercing of the walls with different speeds in different countries is already going on, as almost all states are more or less involved in proliferating dispute resolution systems which, from one side require qualified lawyers, and from the other produces judgments which are to be implemented or, at least, understood at the national level. Thus, such substantive fields as human rights, international trade and investments are in avant-garde of this process. This is rather a pragmatic and utilitarian articulation of forces, which might shift a governmental position, although their role is limited, especially taking into account that a human rights sphere might have a ‘dangerous’ potential in eyes of a non-democratic government being by definition double-edged.

Thirdly, competiveness among institutions of higher education (which in varying proportions can comprise both commercial and reputational aims) would push universities to hire foreign specialists, introduce courses or even educational programs in English and support publications in international peer-reviewed journals. These processes, though they may be fairly criticized for excessive reliance on administrative tools, are relevant for ‘internationalization’ of International law, especially in states pushing their best universities to strengthen their positions in the well-recognized worldwide rankings. Although, this ‘race’ can result in a distortion of the educational space, when a limited ‘exported’ part will have almost no connections with a not-changed domestic one.

Awareness about capacities and limits of all possible forces able to push International Law to be ‘more international’ makes it obvious that it is, in the first line, our professional conscience and realization of International Law as a scientific discipline that regardless of economic and political constellations in a particular state or region would even require from us to care about ‘internationality’ as a sine qua non element of methodology. It is pertinent not to wait until the changes will come from above, but start with feasible steps: with our own research, with our students and with our plans of future scientific events and collective monographs, always asking ourselves: ‘Do I realize which boundaries surround me in the discipline and am I, at least, trying to act above them?’

Thus, it is in our own hands to make the monograph written by Anthea Roberts to change the ‘world of International law’.

While I’ve been reading, I have wondered about the exact nature of Anthea Roberts’ book. A sociological inquiry? A manifesto? A plea? Against arrogance? Against a new Empire? For comparison? For pluralism? Maybe a bit of all this? In any case, it is a polite call for lucidity. It seems the author has tried to confirm some hunches she picked up along the way.

In one sense, writing such a book was a risky enterprise. Contrary to what the title might suggest, Anthea Roberts writes less about international law than about international lawyers, who are in constant danger of thinking of international law in a parochial way while claiming its universality. Indeed this book might be a good way to displease many people, although everyone has the choice between identifying with the tendencies she uncovers or considering themselves an exception. But past that, Anthea Roberts comes out with some statements which can be felt as more or less dreadful, depending on one’s situation. She does not propose a miracle cure but at least a realization. To this extent, her approach is not a pessimistic one.

Admittedly, it is possible to criticize this or that angle of the study, such as the choice – even motivated – to focus on the P5 or the presentation of the specifics of a domestic system which does not seem perfectly understood, or else the delimitation of what is “western”. But what I found most interesting is the way in which Anthea Roberts was able to present an analysis which turns out to be very political, as a project as well as in its outcome.

From the outset, I understood the book as another step in Anthea Roberts’ study of what she calls “comparative international law”. I have to confess that I was rather reluctant when starting my reading. First, I was not sympathetic to this wording because I felt it as rather old-fashioned. In my view it recalled the old understanding of comparative law – indeed the most usual one – consisting in comparing domestic law and more or less exotic foreign law(s) or, less often, foreign laws alone. Thus the focus on various – and national – approaches to international law belongs to this trend. Second, I do not like the locution ‘comparative law’ as I have the constant feeling that it rests upon a misunderstanding. It does not refer to law as a set of norms but to a methodology applied to law, and which can be applied to any kind of law, be it domestic or international, private or public, etc. Thus comparing how various international courts and tribunals deal with a specific issue can qualify as comparative international law, which can therefore be de-nationalized.

Obviously, the book had to tame me, and it did.

Going further in my reading and the reflection it triggered rang a bell. It reminded me of the Congrès international de droit comparé held on the initiative of the Société de législation comparée in Paris from July 31 to August 4 1900, on the fringes of the Exposition universelle. In his report on behalf of the Organizing Committee, Saleilles promoted the idea of a ‘common law of civilized humanity’ (“droit commun de l’humanité civilisée”) which he presented as the tool for what he called the most reliable and fecund progress (“l’instrument du progrès le plus sûr et le plus fécond” – R. Saleilles, Conception et objet de la science du droit comparé, Congrès international de droit comparé, Société de législation comparée, 1900, t. 1, p. 167s.). There was this dream that a better knowledge and understanding of the various laws of the world would allow lawyers to bring them closer and to draw common principles from them. There was undoubtedly a shared belief that it would be for the common good. Throughout the 20th century and because of, or despite, its turbulence, one might have thought that these common principles, this common law, would take hold in international law. Isn’t this an almost foregone conclusion, even a redundance, as the vocation of international law is to be a common law? By the way, comparative works undertaken in Paris at the instigation of Mireille Delmas-Marty on the occasion of the centenary of the Congress of 1900, entitled “Variations autour d’un droit commun” (Editions SLC, 2 books, 2001 and 2002), put a lot of emphasis on the internationalisation of law as a vehicle of common principles and pieces of a common law, although the contention was worded very cautiously. Thus it called for the metaphor of a jigsaw puzzle to characterise this evolution.

Interestingly, Anthea Roberts uses the very same image when she recalls that “it is important to understand the various elements examined as different pieces of a puzzle in which the aspects are individually open to criticism but collectively paint a more compelling portrait” (p. 48). However, her book brings to light a kind of regression if not regarding reality, at least regarding our beliefs. Even international law might not be common. Therefore, irony might be at play if at the same point in time that comparatists believe in the universalizing ability of international law, international lawyers have to acknowledge that international law is not a unit but a puzzling puzzle of national, if not even more fragmented, visions.

Maybe the answer is that international lawyers should become comparatists. This is Anthea Roberts’ claim as I understand it. I accept it provided that we reflect further on the object and purposes of comparison in this context and that we look at how comparatists have reflected on the functions that comparative law can perform. In a nutshell, two main functions can be identified, knowledge and influence. Of course, comparison fulfils first and foremost a cognitive function. Thanks to a resulting increased awareness of diversity, it allows us to understand law as a contextualised cultural phenomenon. Admittedly contextualisation is not a foreign language for international lawyers but more efforts might be needed in this direction. Comparison also allows us to learn that the fact others do or think differently does not mean that they are wrong. This cognitive function can even amount to a “subversive function”, as Horatia Muir Watt puts it (La fonction subversive du droit comparé, Revue internationale de droit comparé, Year 2000, Vol. 52, No 3, pp. 503-527), speaking of comparative law as a means of critical understanding of the law. According to her, “comparison is thus capable of freeing legal thought from inhibiting conceptual constraints by paving the way to new ways of reading the law”. Understanding what others do or think helps us to question critically what we think or do. This is typically what Anthea Roberts promotes in her book, highlighting both sides of the coin. First in positive terms, by stating that “consciously assuming a comparative international law approach may help international lawyers to look at their field through different eyes and from different perspectives, enabling them to understand others more fully and to critique themselves and their own state more perceptively” (p. 321). Then in negative terms, by recalling that “if international lawyers operate in silos, either domestically or transnationally, they risk failing to connect with, and understand the perspectives of, those coming from diverse backgrounds and holding different perspectives” (p. 323). Of course anyone might not share this view. Some comparatists have a pessimistic vision in the sense that they think that, due to our differences, we can never be sure of understanding each other. Others have a more optimistic view according to which, despite our differences, we can never be sure of not understanding each other. In any event, being able to deal with and discuss any different view or interpretation is – or should be – part of the DNA of any lawyer.

But there is more, in relation to the second main function that comparison might help to perform, i.e. influence. The temptation which occurs almost inevitably with comparison is classification, even hierarchisation. History is paved with examples of countries trying and sometimes succeeding in exporting their legal models, civil codes, criminal codes, etc. History also tells us that such transfers sometimes called mimetism do not take place without distortion (I like the French word for this which is “gauchissement”) and there, we are back to context and the cultural – or social – dimension. This alone tells us that there cannot be common law without hybridisation and Anthea Roberts demonstrates that reducing the issue in international law to a competition between civil law and common law systems lies on a biased understanding which ignores the various ways of influence. Comparison is never neutral, this is a given, but it comes with the fact that any strategy can engender a counter-strategy, all the more that there are huge asymmetries. There, we face the hidden paths of influence. Comparison, in the sense of knowing better the other, can feed resistance to unification, playing against the globalist delusion at least as we thought we could understand it so far. By focusing on states which figure prominently in the global flow of students, Anthea Roberts might have identified ways of influence – through education which can also play as an acculturation – but also possible Trojan horses. She rightly shows that the ones who learn the ways of reasoning of others without reciprocity, might in the long run be able to beat those from whom they have learnt at their own game. There we are. The time has come to open our eyes but are we ready? Is the international elite that Anthea Roberts rightly identifies and that I used to call ‘the International Bubble’ ready to open up and renounce its “entre-soi”?

Two last remarks in this regard. First, my experience with comparison – or comparative law if one prefers – is that it is very demanding and that, at least speaking about academy, it remains a rather marginalized discipline instead of being a methodology pervading each and every field of expertise. And yet, this is an incredibly useful tool not only to escape domestic silos but also silos of specialisation or even hyper-specialisation. Second, and it goes hand in hands with comparison, language is key. Monolingualism is a killer. Not because the current lingua franca is English (or Globish?) but because trying to master professionally – and not only as a tourist – at least two languages teaches the many difficulties in moving from one to the other without changing ways of reasoning, losing subtleties, facing dilemmas, while monolinguals do not even care about being understood.

The conversation to which Anthea Roberts has terrifically contributed with her book is far from being over, surtout si nous sommes nombreux à accepter de déplacer notre regard.